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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants. v. Alan ALTSHULER et al., Defendants-Appellees.
No. 73-1250.
United States Court of Appeals, First Circuit.
Heard Oct. 2, 1973.
Decided Nov. 30, 1973.
Certiorari Denied April 22, 1974.
See 94 S.Ct. 1971.
James J. O’Leary, Boston, Mass., with whom Joseph P. Rooney, Ansel B. Chaplin, Gaston, Snow, Motley & Holt, Boston, Mass., and James E. Flynn, Jr., Cambridge, Mass., were on brief, for plaintiff s-appellants.
Dennis L. Ditelberg, Asst. Atty. Gen., and Gershon M. Ratner, Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John F. Houton, Asst. Atty. Gen., Michael J. Hoare, Sp. Asst. Atty. Gen., Benjamin Jones, and Robert City, Boston, Mass., were on brief, for defendants-appellees.
Robert T. Moore, Atty., Dept, of Justice, with whom William J. Kilberg, Sol. of Labor, J. Stanley Pottinger, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and David L. Rose, Atty., Dept, of Justice, were on brief, for The Secretary of Labor of The United States, amicus curiae.
Jerry Cohen, Morris Shubow, John Henn, John Reinstein, Matthew Fein-berg, Charles A. Levin, Mark A. Michelson, and Stephen R. Moore on brief for Civil Liberties Union and American Jewish Congress, New England Region, amici curiae.
Before COFFIN, Chief Judge, MOORE and McENTEE, Circuit Judges.
Of the Second Circuit, sitting by designation.
COFFIN, Chief Judge.
This is an appeal from a judgment sustaining, as constitutional and in accord with state law, certain contract requirements imposed by the Commonwealth of Massachusetts upon contractors engaged in publicly funded construction work at Boston State College. Appellants are thirteen individual construction companies, now engaged in construction of public buildings for the Commonwealth, and a membership corporation comprised of one hundred forty-five general contracting firms which together perform approximately eighty per cent of all construction in the Commonwealth. Each of the appellants was a prospective bidder for the Boston State College contract.
In relevant part, § IB of the contract requires that the contractor
“... maintain on his project, which is located in an area in which thére are high concentrations of minority group persons, a not less than twenty percent ratio of minority employee man hours to total employee man hours in each job category ft
Section V, ¶ 3, of the contract provides, however, that the contractor must hire only “competent” workers. The Secretary of Transportation and Construction for the Commonwealth, who is charged with enforcing the contract provisions, interprets this to mean that § IB requires the hiring of only “qualified” workers. The district court has interpreted the contract in the same way.
The contract also requires that the contractor engage in special referral procedures as well as traditional referral methods, cooperate with a Liaison Committee composed of various representatives from community groups, make weekly compliance reports to the Liaison Committee and the Massachusetts Commission Against Discrimination (M.C. A.D.), and permit the M.C.A.D. access to books, records, and accounts containing employment information.
The contract further stipulates that the M.C.A.D. will investigate any alleged non-compliance with the contract terms and notify the contractor of both its findings and recommendations as to how he might comply with the terms. If the contractor fails to accept the recommendations and in addition the M.C.A.D. determines that the contractor has not taken “every possible measure to achieve compliance”, the M.C.A.D. will report its findings to the Bureau of Construction and recommend that specific sanctions be imposed. Before imposing any sanctions, however, pursuant to the Commonwealth’s Administrative Procedures Act, M.G.L.A. c. 30A §§ 10, 11, and according to the Secretary of Transportation and Construction, the Bureau will provide the contractor with notice of the findings and a hearing in which he may challenge them.
Because the federal government pays a portion of the construction costs of the Boston State project, contractors are also required to accept federal bid conditions, promulgated by the United States Secretary of Labor pursuant to § 201 of Executive Order No. 11246 (30 F.R. 12319, as amended, 32 F.R. 14303; 34 F.R. 12985) and 41 C.F.R. 60. The specific contractual elements of the federal bid conditions are derived from the Boston Area Construction Program (the Boston Plan), a “hometown” equal employment opportunity plan prepared by the local construction industry in cooperation with the Department of Labor. Unlike the Commonwealth’s § IB, the federal Boston Plan sets area-wide percentage objectives for minority hiring within each trade, rather than percentage goals for each project. Under the Boston Plan the responsibility for fulfilling the objectives does not lie with the individual contractor; he merely agrees to hire whatever minority workers are referred to him by the trades unions in the course of the plan’s operation. Moreover, while § IB requires that contractors take “every possible measure” to comply with the contract terms, the Boston Plan necessitates merely a “good faith” effort by the contractor. A fourth point of difference between the two plans is that the Boston Plan places the burden of proving noncompliance upon the government agency, while § IB places the burden of proving compliance, once non-compliance has been alleged, upon the contractor himself.
Appellants challenge the constitutionality of § IB of the contract requirements imposed by the Commonwealth on three grounds: They contend, first, that' § IB varies so significantly from the federal bid conditions of the Boston Plan that it violates the Supremacy Clause of Article VI; second, that § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment; and finally, that § IB permits the imposition of sanctions without proper notice or an opportunity to be heard, in violation of the Due Process clause of the Fourteenth Amendment. Appellants also contend, pursuant to the pendent jurisdiction of this court, that § IB involves the M.C.A.D. in activities which go beyond the scope of its enabling legislation.
I
In order to deal with appellants’ first contention, that § IB violates the Supremacy Clause because the federal Boston Plan must necessarily preempt § IB, it is necessary to set out the context in which this case arises.
We note at the outset that the construction industry has been particularly slow, throughout the nation, to open itself to racial minorities. For this reason, in 1967 the federal government launched pilot plans in several cities designed to increase minority employment on federally funded construction projects by way of “affirmative action” programs. Executive Order 11246, under which the Secretary of Labor was authorized to promulgate such programs, required that contractors “take affirmative action to ensure that applicants are employed... without regard to race.... ” Affirmative action itself was defined as “specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables ”
After several different affirmative action programs had been implemented, with varying degrees of success, in 1970 the government permitted particular communities to develop their own “hometown” affirmative action programs. If the Secretary of Labor approved the plans, the plans would receive federal funding, and local contractors who complied with them would thereby comply with the mandate of Executive Order 11246.
The Boston Plan emerged from negotiations between representatives. of buildings trades unions, contractors, and minority communities in the Boston area, and was approved by the Secretary of Labor in the fall of 1970. Although it fulfilled its first year goal of training and placing three hundred sixty minority workers, relationships with the minority community representatives deteriorated to the extent that the Department of Labor withheld second year funding until a revised plan could be negotiated. The new plan, beginning operations in January, 1972, did not have the participation of representatives of Boston’s minority communities. In addition, although put into effect two years after the original Boston Plan had commenced, the revised plan retained the same minority employment goal as that of the original plan.
At about the same time as the revised Boston Plan was put into effect, the Commonwealth began an inquiry of its own into the need for a separate state affirmative action program. The inquiry revealed that despite the existence of the federal Boston Plan, minority membership in all of the nineteen participating unions amounted to less than four per cent of union membership, while minorities comprised approximately twenty-three per cent of the population of Boston. Since virtually all of the contractors who engage in state funded projects rely upon these predominantly white unions for workers, minority employment in the construction trades continued to be extremely low. The Commonwealth also determined that the Boston Plan had no provision for the collection of reliable data on the actual number of hours worked by minority workers placed on construction jobs. Finally, in the opinion of the Commonwealth’s Office of Transportation and Construction, the Boston Plan lacked adequate enforcement machinery. On the basis of these findings the Commonwealth concluded that the federal Boston Plan had not gone far enough, and that a separate, state affirmative action program was required for construction projects in which state funds were committed.
The contract for the construction of Boston State College is the first to incorporate both the Commonwealth’s own § IB bid conditions, promulgated under authority of the Governor’s Executive Order No. 74, and the federal Boston Plan bid conditions. The Assistant Secretary of Transportation and Construction for the Commonwealth has determined that there exist adequate journeymen, apprentices, and trainees within Boston’s minority community to provide at least twenty per cent of the work force for the project, as well as for other projects anticipated in the area. It is estimated that the total work force required for the Boston State Project will vary between forty-seven and one hundred fifty persons; contractors on the project must therefore take “every possible measure” to employ between ten and thirty qualified minority workers.
Appellants contend that because the Commonwealth’s § IB affirmative action program places different requirements upon contractors than those of the Boston Plan, the two are in conflict, and that the state plan must therefore be declared invalid. Appellants point out, most particularly, that under § IB, contractors must bear the burden of showing that they have taken “every possible measure” to comply, whereas under the Boston Plan, they must have made merely a “good faith effort” and the burden of showing non-compliance rests with the government agency. They also stress that the record keeping and referral requirements of § IB are more onerous than those of the Boston Plan.
In deciding whether state regulations should be invalidated because they conflict with federal law, courts have tended to examine both the possibility of broad conflict in “purposes and objectives” between the two schemes, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1940), and the likelihood of specific conflict in the implementation of the two programs.
Clearly, the broad purposes which lay behind the federal Boston Plan and the Commonwealth’s § IB are congruent. Affirmative action, defined in the President’s Executive Order as “. steps to guarantee equal employment. including... the development of specific goals and time tables. ” has the same meaning as affirmative action as defined in the Governor’s Executive Order: “... positive and aggressive measures to insure equal opportunity.” Both plans envisage minority hiring goals as a means of achieving equal opportunity.
Nothing in the President’s Executive Order requires that affirmative action taken under the Order be uniform throughout the country, nor does it necessitate that the federal government be the source for every program. An important aspect of federal implementation is the development of “hometown” plans, conceived and developed by local contractors, unions, and minority representatives. And in at least one instance the federal government has relied upon a plan originally conceived by state officials for their own state funded contracts. See Illinois Builders Ass’n v. Ogilvie, 327 F.Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).
Nor is there any indication that the federal government has intended to preempt this field. Federal preemption should not be presumed, absent “a clear manifestation of intention” to preempt the field. Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 97 L.Ed. 231 (1952); see also New York State Department of Social Service v. Dublino, 405 U.S. 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The President’s Executive Order merely requires that contractors take some “affirmative action” and directs the Secretary of Labor to “use his best efforts” through “state and local agencies” as well as federal agencies. The Secretary of Labor has stated, as amicus curiae, that the federal program is not meant to preempt state programs such as the Commonwealth’s § IB. And congressional policy in this area, as expressed in Title VII of the Civil Rights Act of 1964, the statute most closely analogous to the President’s Executive Order, is clearly one of encouraging state cooperation and initiative in remedying racial discrimination. Title VII, 42 U.S.C. § 2000h-4 expressly disclaims any intent to preempt state action. See also Voutsis v. Union Carbide, 452 F.2d 889 (2d Cir. 1971), cert, denied, 406 U. S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1971).
Even if there is no conflict between the purposes and objectives of the two schemes, the state plan might still be invalid if there is a showing of “such actual conflict between the two schemes of regulation that both cannot stand in the same area....” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); see also Perez v. Campbell, 402 U.S. 637, 649-653, 91 S. Ct. 1704, 29 L.Ed.2d 233 (1971). While we acknowledge that § IB may be more demanding than the Boston Plan, and may well involve higher administrative costs, there is no reason to suppose that contractors could not comply with both at the same time. By complying with § IB’s minority hiring goals on projects funded by both the state and the federal government, contractors would also comply with the Boston Plan’s goals. The reporting requirements are different for the two plans, but this merely necessitates the filing of two different sets of reports.
The only place where the two plans might be found slightly incompatible is in the area of trade union referrals. Recognizing that union reluctance to admit minorities to apprenticeship programs has been one primary reason for the small percentage of minorities in the construction trades, the Boston Plan focusses upon encouraging areawide minority recruitment into the unions, and therefore does not alter the patterns of contractor reliance upon the unions for referrals. The Commonwealth’s § IB, however, facilitates referrals from sources other than the unions by providing alternative mechanisms for recruiting minority workers.
We think, however, that there is little likelihood that § IB would discourage union initiative in training and recruiting minorities. The Commonwealth’s program will operate on a small scale, only within neighborhoods with a high minority population; the contractors for the Boston College project are required to employ approximately thirty minority workers. The federal Boston Plan is designed to train and place three hundred sixty minority workers each year drawn from all over the state. Therefore, despite the Commonwealth’s program, buildings trades unions will be obligated to continue their efforts at recruiting minority workers and referring them to contractors. Furthermore, the Commonwealth’s program does not prohibit union referrals. It merely provides other sources for referrals. Thus, § IB might actually induce a stepped-up program of union recruitment if the unions are desirous of maintaining contractor reliance upon union referrals.
We conclude, therefore, that § IB presents no challenge to the Supremacy Clause.
II
Appellant’s second contention, that the Commonwealth’s § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment, presents a more difficult issue, the implications of which stretch far beyond this particular dispute.
The first Justice Harlan’s much quoted observation that “the Constitution [is colorblind]... [and] does not. permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights”, Plessy v. Ferguson, 163 U.S. 537, 554, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (dissenting opinion) has come to represent a long-term goal. It is by now well understood, however, that our society cannot be completely colorblind in the short term if we are to have a colorblind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new opportunities less accessible. Preferential treatment is one partial prescription to remedy our society’s most intransigent and deeply rooted inequalities.
Intentional, official recognition of race has been found necessary to achieve fair and equal opportunity in the selection of grand juries, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); tenants for public housing, Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736 (N.D. Ill. 1969); school administrators, Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); and children who are to attend a specific public school, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
The intentional, official recognition of race in the selection of union members or construction workers has been constitutionally tested and upheld' in two contexts. The first is where courts have ordered, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), remedial action for past discrimination. In fulfilling their “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past... ”, Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), courts have ordered unions to grant immediate membership to a number of minority applicants, United States v. Wood, Wire, and Metal Lathers International Union, Local No. 46, 471 F.2d 408 (2d Cir. 1973), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); to begin an affirmative minority recruitment program, United States v. Sheet Metal Workers International Ass’n, Local No. 36, 416 F.2d 123 (8th Cir. 1969); to match normal referrals with minority referrals until a specific objective has been obtained, Heat and Frost Workers, Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969); or to take on a certain number of minority apprentices for each class of workers, United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert, denied, 404 U. S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Courts have also ordered employers to hire minority employees up to thirty per cent of the total work force, Stamps v. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973); to hire one minority worker every time two white workers were hired, up to a certain number, Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); and in our own Castro v. Beecher, 459 F.2d 725 (1972), we order that black and Spanish-speaking applicants for police positions, who had failed to measure up to a constitutionally impermissible set of hiring standards, be given priority in future hiring.
The second context in which race has been recognized as a permissible criterion for employment is where courts have upheld federal affirmative action programs against challenges under the Equal Protection clause or under the anti-preference provisions of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(j). Recognizing that the discretionary power of public authorities to remedy past discrimination is even broader than that of the judicial branch, see Swann v. Charlotte-Mecklenburg, supra at 16 of 402 U.S., 91 S.Ct. 1267; cf. Katzenbach v. Morgan, 384 U.S. 641, 653, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), courts have upheld the specific percentage goals and time tables for minority hiring found in the Philadelphia Plan, Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, 311 F.Supp. 1002 (E.D. Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971), cert, denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971), the Cleveland Plan, Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, 908 (1969), cert, denied, 396 U.S. 1004 (1970), the Newark Plan, Joyce v. MeCrane, 320 F.Supp. 1284 (D. N.J. 1970), and the Illinois Ogilvie Plan, Southern Illinois Builders Ass’n v. Ogilvie, 327 F. Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).
Despite ample precedent for using race as a criterion of selection where the goal is equal opportunity, we approach its use in the present case with care. This marks the first time, to our knowledge, that a court has been asked to sanction a plan for hiring a specific percentage of minority workers that requires an employer to take “every possible measure” to reach the goal on each job site, and places upon him the burden of proving compliance, under threat of serious penalties if that burden is not sustained. It is but a short step from these requirements to a demand that an employer give an absolute percentage preference to members of a racial minority, regardless of their qualifications and without consideration for their availability within the general population. The Commonwealth’s affirmative action plan forces us to address a fundamental question: are there constitutional limits to the means by which racial criteria may be used to remedy the present effects of past discrimination and achieve equal opportunity in the future?
There are good reasons why the use of racial criteria should be strictly scrutinized and given legal sanction only where a compelling need for remedial action can be shown. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (2d Cir. 1969). Government recognition and sanction of racial classifications may be inherently divisive, reinforcing prejudices, confirming perceived differences between the races, and weakening the government’s educative role on behalf of equality and neutrality. It may also have unexpected results, such as the development of indicia for placing individuals into different racial categories. Once racial classifications are imbedded in the law, their purpose may become perverted: a benign preference under certain conditions may shade into a malignant preference at other times. Moreover, a racial preference for members of one minority might result in discrimination against another minority, a higher proportion of whose members had previously enjoyed access to a certain opportunity.
In the present instance, there is no question that a compelling need exists to remedy serious racial imbalance in the construction trades, particularly in Rox-bury, Dorchester, and South End, where minorities constitute approximately forty per cent of the population, and yet only about four per cent of the membership of buildings trades unions, and where there has been a long history of racial discimination in those unions. Such an imbalance within the relatively lucrative, highly visible, and expanding construction trades undermines efforts at achieving equal opportunity elsewhere in the economy, and contributes to racial tensions.
Even where a long history of discrimination and continuing racial imbalance compels the remedial use of ¡racial criteria, however, the means chosen to implement the compelling interest should be reasonably related to the desired end. See Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, supra, 311 F.Supp. at 1011; cf. McLaughlin v. Florida, 379 U.S. 184, 193, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). A program which included unrealistic minority hiring goals might impose an unreasonable burden on the employer and upon qualified workers who were denied jobs because they were not members of the racial minority. Unrealistically high goals are likely, in addition, to forment racial tensions and to prompt employers to circumvent the rules.
A program of affirmative action might be considered to impose unrealistic and unreasonable hiring goals if it included a racial preference that could not be fulfilled, or could be fulfilled only by taking on workers who were unqualified for the trainee, apprentice; or journeyman status for which they were hired. Equal opportunity is an elusive concept, but at its core it carries the simple mandate that opportunities should be open to all on the basis of competence alone. Thus, it would be consistent with the goal of equal opportunity to give first priority to members of a minority that had previously been denied equal opportunity, if those members were otherwise as qualified as were qualified members of the majority population. In order that this special treatment be meaningful, of course, there should be equal opportunity to gain the training necessary to qualify.
While § IB says nothing about hiring “qualified” minority workers, § V, ¶ 3 of the same contract requires that the contractor hire only “competent” workers. The district court has interpreted § IB in light of § V, U 3, to require that the twenty per cent minority employees of § IB be “qualified” for the status to which they were assigned. The Commonwealth’s Secretary of Transportation and Construction, who is charged with implementing these provisions, has interpreted § IB in the same way.
Appellants maintain, however, that the goal of twenty per cent minority workers on each construction site, combined with the contractor’s burden of proving that he has taken “every possible measure to achieve compliance” with the goal, will necessarily move the contractor to hire unqualified minority workers, rather than run the risk of incurring sanctions. While we think that this is an unwarranted concern, given that the Boston State College project will require approximately thirty minority workers, we concede that, in principle, a high percentage goal for minority hiring combined with a high burden of proving compliance might create the likelihood that unqualified workers would be hired.
Despite the fact that the Secretary of Transportation and Construction alleges that the twenty per cent goal was based upon an assessment of current availability of minority journeymen, apprentices, and trainees, courts are ill equipped to judge the accuracy of such assessments. It becomes important, therefore, that affirmative action plans, such as the Commonwealth’s § IB, contain fair procedures for contractors to make a showing that insufficient qualified minority workers are available. Thus, any reasonable program designed to remedy racial imbalance must incorporate the necessary elements of due process. So long as contractors receive notice and a meaningful opportunity to challenge any allegations of non-compliance and prove that they have taken whatever efforts are required of them to comply, it is less important that a particular percentage goal might be Slightly optimistic or unrealistic, given current availability of qualified minority workers.
Appellants’ contention that § IB violates the Equal Protection clause is therefore intimately tied to their contention that § IB, in violation of thp Due Process clause, permits the imposition of sanctions without proper notice or an opportunity to be heard, an issue to which we now turn.
Ill
Appellants’ due process claim concerns § IB.2 of the contract provisions, which sanctions listed below.... [T]he Commission (M.C.A.D.) shall make a final report of non-compliance, and recommend to the Bureau [of Construction] the imposition of one or more of the sanctions listed below.... [T]he Bureau shall impose one or more of the following sanctions, as it may deem appropriate.... ”
The M.C.A.D.’s determination of noncompliance is made ex parte. Contractors are notified of the findings and given an opportunity to take specific steps which would, in the opinion of the M.C.A.D., bring them into compliance, but contractors are not permitted to challenge the findings of non-compliance at this juncture.
The Bureau of Construction is required, pursuant to the Commonwealth’s Administrative Procedure Act, M.G.L.A. c. 30A §§ 10, 11, to hold a hearing before any penalties may be imposed on the contractors for non-compliance. What is in dispute is the scope of this hearing. Appellants maintain that § IB.2 allows, at most, a challenge to the particular sanction which the M.C.A.D. has recommended, in favor of what might be contended to be a more appropriate sanction, but not a challenge to the truth of the M.C.A.D.’s basic findings of non-compliance. If appellants’ interpretation of § 1B.2 were correct, their due process claim would have some merit because contractors would be subject to serious penalties, such as debarment from participation in state contracts for three years, without having had an opportunity to contest the findings on which the imposition of the penalty was based. See Boddie v. Connecticut, 401 U.S. 371, 377-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
We do not think, however, that § IB.2 must necessarily be interpreted to require such a narrowing of the scope of the administrative hearing. The contract states that the Bureau “shall impose” one of the sanctions only “as it may deem appropriate to attain full and effective enforcement.” It would seem perfectly consistent with this mandate for the Bureau to determine for itself that the contractor had in fact taken “every possible measure” to achieve compliance, despite the findings of the M. C.A.D. to the contrary, and that any sanction would be inappropriate. The presumption of constitutionality customarily accorded state statutes, e. g., United States v. Carolene Products, 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), would dictate that we apply this interpretation. The Supreme Judicial Court of Massachusetts has, moreover, construed certain other Commonwealth statutes, facially lacking express provisions for notice and hearing, as impliedly calling for such due process requirements. See Rohrer, Petitioner, 353 Mass. 282, 230 N.E.2d 915 (1967); O’Leary, Petitioner, 325 Mass. 179, 89 N. E.2d 769 (1950).
The Commonwealth’s Secretary of Transportation and Construction has given the foregoing interpretation to § IB.2, and has stipulated that no sanctions may be imposed against a contractor until he has had a full hearing before officials of the Bureau of Construction in which he may challenge any findings of non-compliance by the M.C. A.D. Since the Secretary is entrusted with interpretation and implementation of the contract privisions, his view is at least entitled to “respectful consideration”, Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935). We see no reason not to accept his interpretation in this case, Law Students Research Council v. Wadmond, 401 U.S. 154, 162, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), and indeed condition our holding on the consistent application of this interpretation. We conclude, therefore, that § IB so construed does not violate the Due Process clause of the Fourteenth Amendment.
Since contractors are provided with notice and a full opportunity to contest allegations of non-compliance, they may thereby show that insufficient qualified minority workers were available. Therefore, in light of our preceding analysis, we find that § IB does not violate the Equal Protection clause of the Fourteenth Amendment.
IV
Appellants’ final contention, which comes within the compass of
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
RUTHERFORD FOOD CORP. et al. v. McCOMB, WAGE AND HOUR ADMINISTRATOR.
No. 562.
Argued April 9,10,1947.' —
Decided June 16, 1947.
E. R. Morrison argued the cause for petitioners. With him on the brief was R. L. Hecker.
Bessie Margolin argued the cause for respondent. With her on the brief were Acting Solicitor General Washington, Philip Elman, William S. Tyson and Morton Liftin.
Mr. Justice Reed
delivered the opinion of the Court.
The Administrator of the Wage and Hour Division of the Department of Labor brought this action to enjoin the Rutherford Food Corporation and the Kaiser Packing Company from further violating the Fair Labor Standards Act. The Administrator alleged that the defendants had repeatedly failed to keep proper records and to pay certain of its employees overtime as required by § 7 of the Act. The District Court refused to grant the injunction. The Circuit Court of Appeals reversed on appeal, and directed the entry of the judgment substantially as prayed for. Walling v. Rutherford Food Corporation, 156 F. 2d 513. We brought the case here because of the importance of the issues presented by the petition for certiorari to the administration of the Act.
The Fair Labor Standards Act of 1938, enacted June 25, 1938, is a part of the social legislation of the 1930’s of the same general character as the National Labor Relations Act of July 5, 1935, 49 Stat. 449, and the Social Security Act of August 14, 1935, 49 Stat. 620. Decisions that define the coverage of the employer-employee relationship under the Labor and Social Security acts are persuasive in the consideration of a similar coverage under the Fair Labor Standards Act. See Labor Board v. Hearst Pub lications, 322 U. S. 111; United States v. Silk, ante, p. 704, decided today.
The petitioners are corporations of Missouri authorized to do business in Kansas. The slaughterhouse of the Kaiser Packing Company, the place of the alleged violations with which we are concerned, and the principal place of business of that company, is in Kansas City, Kansas, from which it ships meat in interstate commerce. Since 1942 most of its product has been boned beef. The petitioner, Rutherford Food Corporation, has its principal place of business and its plant for processing meat products in Kansas City, Missouri. In 1943, Rutherford bought 51% of the stock of Kaiser in order to assure itself of a constant supply of boned beef for contracts it had with the U. S. Army. Kaiser had been operating and continued to operate at a loss, and Rutherford advanced more than $50,000 to Kaiser between March, when Rutherford bought the Kaiser stock, and July, 1943. To assure itself of a continued supply of meat, Rutherford leased Kaiser’s facilities and took over operation of the slaughterhouse in July. In May, 1944, the lease was terminated and Rutherford’s stock interest in Kaiser sold, so that Kaiser might qualify for subsidies granted by the Defense Supplies Corporation to unaffiliated nonprocess-ing slaughterers under its Regulation No. 3.
Prior to 1942 Kaiser had one hourly paid employee who acted as a combined butcher, beef boner and order filler. During 1942, in order to be able to furnish beef boned to Army specifications to the Army under contract, Kaiser entered into a written contract with one Reed, an experienced boner, which provided that Reed should assemble a group of skilled boners to do the boning at the slaughterhouse. The terms of the contract were that Reed should be paid for the work of boning an amount per hundredweight of boned beef, that he would have complete control over the other boners, who would be his employees, that Kaiser would furnish a room in its plant for the work, known as the boning vestibule, into which the carcasses of cattle slaughtered by Kaiser would be moved on overhead rails by Kaiser employees, that Kaiser would also furnish barrels for the boned meat which would be washed and moved out of the vestibule by Kaiser’s employees. Reed abandoned the work in February, 1943, and the work was taken over under an oral contract by one of the boners who had worked with him. This boner, Schindel, also abandoned the work in May, 1944, and an oral contract was then made by the company with Hooper and Deere, who had workéd with Schindel. After a few months Deere left, at which time Hooper entered into a written contract substantially like the one between Kaiser and Reed, save that it provided for rent to be paid by Hooper for the boning room, although as a matter of fact no rent was ever paid. The District Court found that since the boning work had started in 1942, the money paid by Kaiser had been shared equally among all the boners, except for a short time after Hooper took over the work when he paid some of the boners by the hour. It was stipulated further that the boners owned their own tools, although these consisted merely of a hook to hold the meat, a knife to cut it, a sharpener for the knife, and a leather belt (apron). Although the C. I. 0. union which was the representative of the workers of the company insisted that the boners be members, and although the written contracts provided that they should join, it was stipulated that the union dues of the boners were not checked off and that the boners were not subject to the authority of the union steward at the plant.
The slaughterhouse operations, of which the boning is a part, are carried on in a series of interdependent steps. The cattle are slaughtered, skinned and dressed in the killing room, and the carcasses are moved thence on overhead rails into an overnight cooler by employees of Kaiser. The next day they are moved into another cooler and then into the boning vestibule, on the same overhead rail. They move around the boning room on the rail, each boner cutting off a section for boning. The boneless meat is put into barrels, or passed to a trimmer, an employee of Kaiser, who trims waste matter from the boned meat. Waste is put into other barrels. The barrels are moved from the boning room by employees of Kaiser into another room, called the dock, where the meat is weighed and put on trucks. Kaiser has never attempted to control the hours of the boners, but they must “keep the work current and the hours they work depend in large measure upon the number of cattle slaughtered.” 156 F. 2d 513, 515. It is undisputed that the president and manager of Kaiser goes through the boning vestibule many times a day and “is after the boners frequently about their failure to cut all of the meat off the bones.”
The Administrator thought these facts brought the boners within the classification of employees, as that term is used in the Act. But the District Court thought that they were independent contractors, and denied the injunction sought by the Administrator. The Circuit Court of Appeals, however, said: “The operations at the slaughterhouse constitute an integrated economic unit devoted primarily to the production of boneless beef. Practically all of the work entering into the unit is done at one place and under one roof. . . . The boners work alongside admitted employees of the plant operator at their tasks. The task of each is performed in its natural order as a contribution to the accomplishment of a common objective.” In its view the test for determining who was an employee under the Act was not the common law test of control, “as the Act concerns itself with the correction of economic evils through remedies which were unknown at common law . . . It concluded that the “underlying economic realities . . . lead to the conclusion that the boners were and are employees of Kaiser . . . 156 F. 2d 513, 516-17.
The Fair Labor Standards Act was passed by Congress to lessen, so far as seemed then practicable, the distribution in commerce of goods produced under subnormal labor conditions. An effort to eliminate low wages and long hours was the method chosen to free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well-being of workers. It was sought to accomplish this purpose by the minimum pay and maximum hour provisions and the requirement that records of employees’ services be kept by the employer. To make the method effective, the Act contains a section granting to the district courts of the United States jurisdiction to enjoin certain violations of the Act here involved, relating to the keeping of records of employment and the paying of overtime. Whether or not the acts charged in this complaint violate the Act depends, so far as the meat boners are concerned, upon a determination as to whether either or both respondents are employers of the boners. As our conclusion requires further action in the trial court to frame the injunction, we shall treat only the question of the relationship of the boners to the alleged employers. We shall not in our consideration undertake to reach any conclusion as to the appropriate form of an injunction. We pass only upon the question whether the boners were employees of the operator of the Kansas plant under the Fair Labor Standards Act.
As in the National Labor Relations Act and the Social Security Act, there is in the Fair Labor Standards Act no definition that solves problems as to the limits of the employer-employee relationship under the Act. Provisions which have some bearing appear in the margin. The definition of “employ” is broad. It evidently derives from the child labor statutes and it should be noted that this definition applies to the child labor provisions of this Act, § 12. We have decided that it is not so broad as to include those “who, without any express or implied compensation agreement, might work for their own advantage on the premises of another.” Walling v. Portland Terminal Co., 330 U. S. 148, 152, decided February 17, 1947. In the same opinion, however, we pointed out that “This Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships which, prior to this Act, were not deemed to fall within an employer-employee category.” 330 U. S. 148, 150. We have said that the Act included those who are compensated on a piece rate basis. United States v. Rosenwasser, 323 U. S. 360. We have accepted a stipulation that station “redcaps” were railroad employees. Williams v. Jacksonville Terminal Co., 315 U. S. 386, 391. There may be independent contractors who take part in production or distribution who would alone be responsible for the wages and hours of their own employees. See United States v. Silk, supra; compare Roland Electrical Co. v. Walling, 326 U. S. 657; Martino v. Michigan Window Cleaning Co., 327 U. S. 173. We conclude, however, that these meat boners are not independent contractors. We agree with the Circuit Court of Appeals, quoted above, in its characterization of their work as a part of the integrated unit of production under such circumstances that the workers performing the task were employees of the establishment. Where the work done, in its essence, follows the usual path of an employee, putting on an “independent contractor” label does not take the worker from the protection of the Act.
The District Court was of the view that:
“The right to contract is not only an inherent right but a constitutional right, and independent contracts, as a method of quantity production of boned beef, have not been uncommon in the packing business, generally. . . . The plan under which boners share equally in the boning money is commonly employed in Kansas City and elsewhere, and most of the boners who have worked in the Kaiser plant have worked at various times and in various plants under independent contractors. There is nothing inequitable in the sharing method under which compensation is divided equally among the group. It gives each man an interest in the amount of work being done by the other members of the group. It also gives no advantage to the man who is boning the fleshier parts of the carcass. Under this plan beginners and casual boners can be equitably taken care of by payment on an hourly basis out of the boning money.”
We think, however, that the determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity. Viewed in this way, the workers did a specialty job on the production line. The responsibility under the boning contracts without material changes passed from one boner to another. The premises and equipment of Kaiser were used for the work. The group had no business organization that could or did shift as a unit from one slaughterhouse to another. The managing official of the plant kept close touch on the operation. While profits to the boners depended upon the efficiency of their work, it was more like piecework than an enterprise that actually depended for success upon the initiative, judgment or foresight of the typical independent contractor. Upon the whole, we must conclude that these meat boners were employees of the slaughtering plant under the Fair Labor Standards Act.
We therefore affirm the conclusion to that effect of the Circuit Court of Appeals and modify the direction of the judgment of that court “for the entry of a judgment substantially as prayed,” so as to leave the District Court free to frame its decree in accordance with this decision.
It is so ordered.
52 Stat. 1060.
29 U.S. C. § 207.
8 F. R. 10826; 8 F. R. 14641; 9 F. R. 1820.
52 Stat. 1060, §§ 2, 6, 7, 11 (c). United States v. Darby, 312 U. S. 100, 125; Overnight Motor Co. v. Missel, 316 U. S. 572, 577-78.
52 Stat. 1060, §§ 17,15,7 (a), 11 (c).
52 Stat. 1060, §3:
“As used in this Act—
“(d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee ....
“(e) ‘Employee’ includes any individual employed by an employer.
“ (g) ‘Employ’ includes to suffer or permit to work.”
Note 11 in the brief for the United States summarizes the relevant data:
“At the time of the enactment of the Fair Labor Standards Act, the phrase ‘employed, permitted or suffered to work’ was contained in the child labor statutes of thirty-two States and the District of Columbia. The same phraseology appeared in the Uniform Child Labor Laws recommended in 1911 and in 1930 by the National Conference of Commissioners on Uniform State Laws (Child Labor Bulletin, Vol. I, No. 2, August 1912; Proceedings of the National Conference, 1930), in the Standard Child Labor Law recommended in the Child Labor Legislation Handbook compiled by Josephine C. Goldmark (See e. g., issue of 1904, p. 11), and in the Standards Recommended for Child Labor Legislation by the International Association of Governmental Labor Officials. The phrase 'employed or permitted to work’ was found in seventeen State statutes as well as in the Federal statutes held unconstitutional in Hammer v. Dagenhart, 247 U. S. 251, and Child Labor Tax Case, 259 U. S. 20. The statutes are cited in the Appendix to this brief, infra, pp. 58-60.”
See Walling v. American Needlecrafts, 139 F. 2d 60; United States v. Vogue, Inc., 145 F. 2d 609; Walling v. Twyeffort, Inc., 158 F. 2d 944.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIAMOND STANDARD FUEL CORP., Respondent.
No. 7702.
United States Court of Appeals, First Circuit.
Jan. 29, 1971.
Warren M. Davison, Deputy Asst. Gen. Counsel, with whom Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Arthur L. Fox II, Atty., Washingon, D. C., were on brief, for petitioner.
Julius Kirie, Boston, Mass., for respondent.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
This is the usual petition for enforcement of a Labor Board order. The Board found that the respondent, a New Hampshire trucking concern, violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by coercively interrogating and threatening its employees with regard to their union activities; § 8(a) (3) and (1) of the Act, 29 U.S.C. § 158(a) (3) and (1), by laying off eight employees because they had joined the union; and § 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5) and (1), by refusing to recognize the union.
Early in September 1968 the Teamsters’ Union obtained signatures from eleven of respondent’s seventeen truck drivers authorizing it to represent them for the purpose of collective bargaining. On the basis of this action, the union contacted the company on September 13 requesting recognition, which was refused. On September 19 eight of the drivers, known by the company to be union adherents, were laid off, assertedly for lack of available work. Respondent contends that the Board erred in discrediting its witnesses and in believing employee testimony regarding the alleged coercive interrogations and the discriminatory motivation behind its layoff policy. That “questions of credibility are for the Board” is too well established to require further discussion here. N. L. R. B. v. Universal Packaging Corporation, 361 F.2d 384, 388 (1st Cir. 1966).
Respondent counters Board charges that it was obligated to recognize the union by asserting that (1) the Board’s determination that respondent’s truck drivers constitute an appropriate bargaining unit was arbitrary, capricious, and an abuse of discretion and (2) the authorization cards were invalid designations of the union. With regard to the bargaining unit, we cannot say that the Board’s omission of respondent’s five garage employees was lacking in rationality or an abuse of its broad discretion to determine appropriate units. S. D. Warren Co. v. N. L. R. B., 353 F.2d 494 (1st Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 300 (1966). As to the cards, they “unambiguously authorized the Union to represent the signing employee for collective bargaining purposes * * * [and made] no reference to elections.” N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 583 n. 4, 89 S.Ct. 1918, 1925, 23 L.Ed.2d 547 (1969). There was ample evidence for the hearing examiner’s finding that there had been no discussion about using the cards to obtain an election until after they were signed. There was also ample support for the Board’s decision to certify the union without holding an election on the grounds that the company’s unfair labor practices were so “outrageous” and “pervasive” that “the invocation of traditional remedies affords no guarantee that an election will provide a more accurate index of employee sentiment than the cards.” See N. L. R. B. v. Gissel Packing Co., supra at 613-615, 89 S.Ct. 1918.
Finally, respondent argues that the trial examiner’s refusal to permit pre-hearing discovery was erroneous in view of N. L. R. B. v. Schill Steel Products, Inc., 408 F.2d 803 (5th Cir. 1969). But that case dealt with the scope of discovery in contempt hearings before the court of appeals and was not intended to apply to proceedings before the Board.
The order of the Board will be enforced.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
CERTAIN BRITISH UNDERWRITERS AT LLOYDS OF LONDON, ENGLAND, etc., et al., Plaintiffs-Appellants, v. JET CHARTER SERVICE, INC., and Aeroservice International, Inc., Defendants-Appellees.
No. 84-5213.
United States Court of Appeals, Eleventh Circuit.
Aug. 3, 1984.
Opinion on Rehearing Dec. 13, 1984.
Thornton, David & Murray, P.A., J. Thompson Thornton, Miami, Fla., for plaintiffs-appellants.
Robert G. David, Jr., McDonald & McDonald, Miami, Fla., for Jet Charter Service.
William E. Sadowski, Akerman, Senterfitt & Eidson, Miami, Fla., for Aeroservice Intern.
Before GODBOLD, Chief Judge, RONEY and TJOFLAT, Circuit Judges.
BY THE COURT:
While Aeroservice was servicing one of Jet Charter’s jets, the jet fell off its supporting jacks and suffered damage. Aeroservice’s insurer, Underwriters, filed this diversity action against Jet Charter and Aeroservice seeking a declaratory judgment that the incident was not covered under its contract of insurance with Aeroservice. The district court granted Jet Charter's and Aeroserviee’s motions for summary judgment but reserved jurisdiction to consider an award of attorney’s fees against Underwriters and in favor of Aeroservice. Florida law allows the award of attorney’s fees in favor of the insured upon rendition of a judgment against the insurer and in favor of the insured.
Aeroservice moves to dismiss Underwriters’ appeal. Aeroservice contends that the grant of summary judgment without an award of attorney’s fees is not a final, appealable order under 28 U.S.C. § 1291. As this court recognized in McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984), whether an order that resolves all issues in a case but leaves the award of fees open is a final, appealable order depends on the circumstances:
“When attorney’s fees are similar to costs ... or collateral to an action ..., a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits. When, however, the attorney’s fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment.”
(quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143, 1146 (5th Cir.1982)), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983).
In Oxford Production Credit Association v. Duckworth, 689 F.2d 587, 588-89 (5th Cir.1982), the Fifth Circuit considered whether an order resolving all issues in the ease but postponing an award of contractual attorney’s fees for suit on a promissory note was a final, appealable order. The court looked to state law in that diversity case to determine that fees arising by contract were a part of the controversy and “an integral part of the merits,” in the language of Holmes. Id. at 589 & n. 3.
We thus look to Florida law to determine whether the award of fees to a prevailing insured under the statute is part of the costs and collateral to the main claim or “an integral part of the merits of the case and the scope of relief” and “part of any final, appealable judgment.” McQurter, 724 F.2d at 882. In Prudential Insurance Co. v. Lamm, 218 So.2d 219, 220 (Fla.Dist.Ct.App.) (citing State ex rel. Royal Insurance Co. v. Barrs, 87 Fla. 168, 99 So. 668, 669 (1924)), cert. denied, 225 So.2d 529 (Fla.1969), the court noted that “attorney’s fees recoverable by statute are to be regarded as ‘costs’ only when made so by statute. Otherwise, they are to be treated as an element of damages.” Here the statute provides that “fees of the attorney shall be included in the judgment or decree rendered in the case.” See supra note 1. The attorney’s fees are not costs and are not collateral to the main action. Rather .fees awarded under section 627.428 are an integral part of the merits of the case and must be part of any final judgment.
The appeal is DISMISSED.
Certain British Underwriters at Lloyds of London, England, etc., et al, petition this court for a rehearing of the panel’s decision dismissing Underwriters’ appeal for lack of a final judgment. 739 F.2d 534. The parties have briefed the issues raised by the petition. We deny the petition but modify the panel decision by deleting the final two paragraphs and substituting the following:
This test, then, creates three categories of attorney’s fees. First is “costs.” A recent Florida case defines costs as “statutory allowances recoverable by a successful party as an incident to the main adjudication [which] need not be specifically pled or claimed.” River Road Construction Co. v. Ring Power Corp., 454 So.2d 38 (Fla.App.1st Dist.1984). Second, the fees may be “collateral.” The Eighth Circuit case which Holmes, 682 F.2d 1143 (5th Cir.1982), relies on to illustrate this concept, Obin v. District No. 9 of the International Association of Machinists, 651 F.2d 574 (8th Cir. 1981), decided that the fees there were collateral because they (a) were not available simply because a party prevailed but further required proof that the plaintiff had brought a frivolous, unreasonable or bad faith action, (b) therefore required a consideration of factors entirely distinct from the underlying judgment, and (c) were discretionary. Id. at 581. Finally, fees may be “an integral part of the merits.” Holmes suggested that such fees are “part of the relief sought,” or “an element of damages.” 682 F.2d at 1147.
In this diversity action state law governs which. of these three categories applies. See Duffer v. American Home Assurance Co., 512 F.2d 793, 800 (5th Cir.1975); see also Oxford Production Credit Association v. Duckworth, 689 F.2d 587, 588-89 (5th Cir.1982). We thus turn to Prudential Insurance Co. v. Lamm, 218 So.2d 219 (Fla.App. 3d Dist.), cert, denied, 225 So.2d 529 (Fla.1969), the Florida case most directly on point. Prudential considered whether an award of attorney’s fees should be included in calculating the amount of the judgment. If so, the trial court had exceeded its jurisdictional limitation of $5,000, exclusive of interests and costs. The court ruled that the fees must be included, stating that “attorney’s fees recoverable by statute are to be regarded as ‘costs’ only when made so by statute. Otherwise, they are to be treated as an element of damages.” Thus, concluded the court, since Fla.Stat. Sec. 627.0127 “does not specifically provide that attorney’s fees are to be regarded as costs, we must consider them as an element of the plaintiff’s damages____” Id. at 220. Sec. 627.0127 is the predecessor of 627.428 and the provisions of both do not significantly differ.
Under the Holmes test, then, an award of attorney’s fees under Sec. 627.428 is “an integral part of the merits” and must be part of any final judgment. Florida cases holding that the finality of the judgment is affected neither by the reservation of jurisdiction in regard to attorney’s fees, General Accident Fire & Life Assurance Corp., Ltd. v. Kellin, 391 So.2d 305 Fla.App. 4th Dist. 1980), nor by the filing of notice of appeal, Roberts v. Askew, 260 So.2d 492 (Fla.1972), are not to the contrary. These cases establish rules of state procedure which, unlike the rule of substantive law in Prudential, are not binding in a federal diversity case.
Accordingly, the appeal is DISMISSED.
. See Fla.Stat.Ann. § 627.428 (1972 & West Supp.1984):
627.428. Attorney's fee
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
(2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney fee shall be allowed if such suit was commenced prior to expiration of sixty days after proof of the claim was duly filed with the insurer.
(3) Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_weightev
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Ruben SANTIAGO MARTINEZ, Plaintiff-Appellee, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellant, v. FRED IMBERT, INC., Third-Party Defendant-Appellee. Ruben SANTIAGO MARTINEZ, Plaintiff-Appellant, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellee, v. FRED IMBERT, INC., Third-Party Defendant-Appellee. Ruben SANTIAGO MARTINEZ, Plaintiff-Appellee, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellee, v. FRED IMBERT, INC., Third-Party Defendant-Appellant.
Nos. 74-1353 to 74-1355.
United States Court of Appeals, First Circuit.
Argued Feb. 4, 1975.
Decided May 29, 1975.
William M. Kimball, New York City, with whom Jose L. Novas-Dueno, Hartzell, Ydrach, Mellado, Santiago, Perez & Novas, San Juan, P. R., and Burlingham, Underwood & Lord, New York City, were on briefs, for Compagnie Generale Transatlantique.
Charles A. Cordero, San Juan, P. R., for Fred Imbert, Inc.
Harvey B. Nachman, San Juan, P. R., with whom Nachman, Feldstein & Gelpi, San Juan, P. R., was on briefs for Ruben Santiago Martinez.
Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
The familiar longshoreman-shipowner-stevedore triangle has led to the three appeals presented in this case. Plaintiff Santiago Martinez, employed as a longshoreman by Fred Imbert, Inc., was working in the hold of the M/V FORT DESAIX when he was struck and pinned by a moving pallet on November 9, 1968. He sued defendant Compagnie Generale Transatlantique, the shipowner, who in turn filed a third party complaint seeking indemnity from plaintiff’s employer, Imbert (the stevedore). By a general verdict the jury awarded the longshoreman $90,000 and found for the stevedore in the indemnity action. The shipowner appeals from both judgments. In addition, the longshoreman appeals from the district court’s denial of his motion to award attorney’s fees and prejudgment interest against shipowner for obstinacy, and the stevedore also appeals the denial of an award for attorney’s fees and other defense costs it incurred. We conclude that the indemnity action must be retried, but reject the other appeals.
The shipowner’s first argument is that there was not sufficient evidence to allow the jury to find for the longshoreman. We disagree. The unloading on the ship was being done by a married winch operation. This required the use of two winches pulling against each other in synchronization to raise a pallet of cargo from the hold where the longshoreman was working. If one winch failed or was not operated correctly, the cargo would plumb under the opposite winch. In the instant case the onshore winch stopped or did not start and thus allowed the full pallet of cargo to plumb under the offshore winch and pin the longshoreman. There was testimony that the same winch had stopped about two hours earlier, but no injury resulted. On both occasions a member of the ship’s crew repaired the winch or replaced fuses and signaled the winchman to resume operations. The electric winches had separate control wheels, but one winch-man operated both winches by sticks attached to the wheels for two and one-half hours and then was relieved by the other winchman.
On the unseaworthiness theory the shipowner essentially argues that the winch may have overloaded and blown a fuse because the winchman was confused as to which way to operate the winch or because the winchman accelerated the winch too rapidly. Even if a winchman was confused at trial as to which way to turn the winches in this married operation, that does not necessarily mean he was confused at the time of the accident years earlier. The important point is that both of these theories were presented to the jury under proper instructions, and the shipowner cannot reargue here that the ship was seaworthy because the evidence allowed an inference that the accident occurred because of a longshoreman’s negligence with no more than instantaneous effect. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). The evidence does not compel that inference, and therefore we need say nothing more about this argument. Nor are we impressed by the argument that the evidence showed the winch “stopped,” not that it “broke or failed.” By this distinction the shipowner attempts to avoid the effect of Greene v. Vantage S.S. Co., 466 F.2d 159, 163 (4th Cir. 1972): “Where an appliance or piece of equipment breaks or fails in the normal course of use, a plaintiff need not show why the failure occurred, but only that it did occur with the resulting injury.” But the jury could have found on the evidence that the winch did fail in the normal course of use. The last attack made on the unseaworthiness theory is that the ship would have been unseaworthy had a fuse not blown when it was overloaded, so the ship could not have been unseaworthy because a fuse blew. The defect in this argument is that the married winch operation may have required that a cutoff device stop both winches automatically if one failed. We are not prepared to say that a jury could not have so applied the seaworthiness requirement.
Plaintiff’s separate count for negligence created complications that we have had occasion to speak about before. As the instant charge illustrates, it is difficult enough to charge a lay jury in a seaman’s case without adding what are not merely redundant questions, but the same questions over again in a more complicated form.
The court charged the jury with respect to the negligence count that plaintiff claimed the shipowner to have been negligent in four particulars:
“(a) In failing to furnish the plaintiff with a reasonably safe place to work, (b) In failing to supply the plaintiff with a reasonably safe vessel and appliances. (c) In failing to provide a proper winch to remove the cargo, (d) In failing to properly supervise the discharging operations.”
It must be apparent that the first three claims were fully and exactly covered by the seaworthiness count and the court’s proper charge that proof as to any of them would impose unseaworthiness liability even though the shipowner was entirely without fault. No purpose is served by asking the jury to resolve the same' issues again with the added requirement that there be affirmative proof of negligence. To paraphrase the Court in Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961), having established a hole in the fence for one cat, there is no need to construct another hole for a second. We dealt with this question in Peymann v. Perini Corp., 507 F.2d 1318, 1323 (1st Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975), where we pointed out that the negligence count was superfluous when it merely re-alleged the same defects that made the ship unseaworthy.
Here, it can have made no difference whether the court’s charge with respect to negligence under items (a), (b) and (c) was sufficiently favorable to the shipowner, or whether the evidence warranted a finding of lack of due care on the shipowner’s part. The charge was certainly no less favorable to the shipowner than was that on unseaworthiness, and both theories were submitted to the jury which returned, without objection, a general verdict. On this record we perceive no way in which the shipowner may have been prejudiced.
The only additional matter alleged in the negligence count was item (d), failing to properly supervise the discharging operations. With respect to this, the court charged,
“The shipowner has no duty to oversee, supervise or direct the methods by which or manner in which the stevedoring corporation and its employees perform the stevedoring services, but the shipowner must correct any dangerous condition if it is known or discovered by him.”
After the charge, at the sidebar, the court stated that it had given this request of the shipowner inadvertently, as it was too favorable. On the shipowner’s appeal we need not consider whether it was too favorable for certainly it was favorable enough. Nor do we see any conflict between this instruction and item (d), which was not stated to the jury as a ruling of law, but simply as what plaintiff claimed.
The court also charged that the shipowner might be denied indemnity if the jury found that the shipowner “by the action of the mate or the crew member, acquiesced or consented to the continuance of the stevedore’s conduct of which it now complains . . . ” and the shipowner apparently objects that this contradicted the charge that it had no duty to supervise. We see no inconsistency. To allow denial of indemnity upon a finding that the shipowner approved of the stevedore’s performance is not to impose liability upon a finding that the shipowner failed to disapprove of the stevedore’s performance. Since the shipowner’s single remaining objection to the charge in the longshoreman’s action depends on quoting the charge out of context, we find no error there. Consequently, the judgment for the longshoreman is affirmed.
The longshoreman’s appeal from the finding that the shipowner was not obstinate within the meaning of Puerto Rico Rules of Civil Procedure 44.4(d) and (e) need not detain us long. By converse reasoning to that applied above, the shipowner had supportable claims either that it was not liable or that it was liable to only a small degree. The jury might have found that the winchman caused this accident by mishandling the winch, in which event Usner would have barred a finding of unseaworthiness. Or the jury might have found that the plaintiff longshoreman was contributorily negligent — by loading another pallet rather than standing out of the way during the lifting phase as he was required to. Since the first failure of this winch did not hurt anyone and should have alerted the longshoremen in the hold not to unnecessarily expose themselves to danger, the jury could have assessed the proportionate contribution of such negligence at a high figure. The diagnosis of plaintiff’s problem as “conversion reaction, chronic related” also produced substantial issues regarding the amount of damages. These considerations amply support the district court’s denial of counsel fees and prejudgment interest.
We turn now to the indemnity issue. The shipowner objected to the following charge:
“If a contributing cause of plaintiff’s injury was his own negligence, that is a factor to be considered by you in determining whether the stevedore has breached its warranty to the shipowner and [if] after considering all the evidence in the case you find that the stevedore has breached its warranty, then the shipowner would be entitled to recover indemnity from the stevedore.”
Its claim is that the jury should have been charged that “If a contributing cause of plaintiff’s injury was his own negligence, then the shipowner would be entitled to recover indemnity.” Another portion of the charge adequately covered the discrete issue of whether shipowner was precluded from recovering indemnity by conduct on its part, see Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), so that issue is not involved here. This dispute is whether a longshoreman’s contributory negligence automatically establishes breach by the longshoreman’s employer of its warranty of workmanlike performance. In the Fifth Circuit it appears that contributory negligence by a longshoreman does not necessarily amount to breach of warranty by the stevedore. Instead, the longshoreman’s contributory negligence is regarded as one consideration in determining whether the stevedore breached its warranty. See Julian v. Mitsui O.S.K. Lines, Ltd., 479 F.2d 432, 433 (5th Cir.), cert. denied sub nom. Mitsui O.S.K. Lines, Ltd. v. Strachan Shipping Co., 414 U.S. 1093, 94 S.Ct. 725, 38 L.Ed.2d 551 (1973); D/S Ove Skou v. Hebert, 365 F.2d 341, 350 (5th Cir. 1966), cert. denied sub nom. Southern Stevedoring & Contracting Co. v. D/S Ove Skou, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970); Lusich v. Bloomfield S.S. Co., 355 F.2d 770, 778 (5th Cir. 1966). It appears that the Third Circuit accepts this approach also. See Shaw v. Lauritzen, 428 F.2d 247 (3d Cir. 1970). In the Second, Fourth, and Ninth Circuits the rule is that contributory negligence by the longshoreman within the scope of his employment is imputed to the stevedore. McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1336-37 (2d Cir.), cert. denied sub nom. Golten Marine Co. v. Trelleborgs Angfartygs A/B, 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed.2d 464 (1969); Nicroli v. Den Norske Afrika-Og Australielinie, 332 F.2d 651, 656 (2d Cir. 1964); Damanti v. A/S Inger, 314 F.2d 395, 399 (2d Cir.), cert. denied sub nom. Daniels & Kennedy, Inc. v. A/S Inger, 375 U.S. 834, 84 S.Ct. 46, 11 L.Ed.2d 64 (1963); United States Lines, Inc. v. Jarka Corp. of Baltimore, 444 F.2d 26, 28 (4th Cir. 1971); Arista Cia. DeVapores, S/A v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). This also may be the rule in the Sixth Circuit. See Turner v. Global Seas, Inc., 505 F.2d 751, 756-57 (6th Cir. 1974). We have recently held that “a stevedore’s warranty of workmanlike performance encompasses a promise to provide longshoremen free of negligence. . . . ” Carrillo v. Sameit Westbulk, 514 F.2d 1214 (1st Cir, 1975). In light of that well-settled rule it is difficult to argue that a stevedore has not breached its warranty where it turns out that one of its employees was negligent within the scope of his employment. We believe the correct rule is that the plaintiff longshoreman’s negligence must be imputed to his employer as a basis for indemnity. Of course, this dobs not mean that a finding of contributory negligence automatically establishes the shipowner’s right to indemnity. The fact finder may still find that there was conduct by the shipowner sufficient to preclude indemnity. See generally Hurdich v. Eastmount Shipping Co., 503 F.2d 397 (2d Cir. 1974).
On the evidence and the charge in this case, coupled with the general verdict, it is entirely possible that the jury found the longshoreman contributorily negligent. Accordingly we are compelled to reverse the judgment for the stevedore and remand for a new trial. It is no answer that the jury may have found that the shipowner’s conduct in providing a defective winch was conduct precluding indemnity. If we knew that was their finding, we could avoid a new trial, but we cannot speculate that the error in the charge did not prejudice the shipowner. This posture evidences once again the usefulness of the procedure authorized in Fed.R.Civ.P. 49(b). If this case had been submitted to the jury for a general verdict accompanied by answers to appropriately phrased interrogatories, the needless waste of a new trial could have been avoided. The debate between the parties over who should bear responsibility for this shortcoming is somewhat shortsighted. Some measure of the blame for not requesting such a submission must be laid at the shipowner’s feet, but an equal measure must be assigned to the stevedore. And of course the court itself would have been well-advised to utilize this procedure.
The remaining issue is the stevedore’s appeal. It argues that the ship-' owner was obstinate in not conceding unseaworthiness and in not being sufficiently receptive to settlement negotiations. Reliance is placed on Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972), where the imposition of attorney’s fees for obstinacy was upheld against the shipowner even though that party prevailed in the third party action. But this case is not analogous to Rivera. It upheld imposition of attorney’s fees for the benefit of the plaintiff longshoreman, not for the stevedore. Rivera also implicitly recognized that obstinacy in defending against a plaintiff does not necessarily establish obstinacy in claiming indemnity from a third-party defendant. See id. at 975 n. 11. Even if we had decided the appeal of the indemnity action differently, the facts of this case would not support a finding of obstinacy against the shipowner and in favor of the stevedore. We need not reach the stevedore’s remaining point, that it is entitled to counsel fees and other defense costs from the shipowner for its breach of its warranty to the stevedore, since that question has been mooted by our reversal in the indemnity action.
The judgment for the plaintiff longshoreman is affirmed; the denial of his motion for an obstinacy award is also affirmed; the judgment for the stevedore is reversed and that case is remanded for a new trial; and the appeal of the stevedore is dismissed.
These rules provide as follows:
“(d) Attorney’s fees. Where a party has been obstinate, the court shall in its judgment impose on such person the payment of a sum for attorney’s fees.”
“(e) [Legal interest.] In all cases of money collection where the party has been obstinate the court shall impose on such person the payment of interest according to law, from the time in which there appeared cause of action and in case of damages, such payment of interest shall be imposed from the time the filing of the claim was made and computed on the amount of the judgment . . ..”
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appfiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Charles D. NYMAN, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
No. 10150.
United States Court of Appeals Fourth Circuit
Argued Jan. 4, 1966.
Decided Jan. 10, 1966.
James W. Harman, Jr., Tazewell, Va., for appellant.
Harvey L. Zuckman, Attorney, Department of Justice (John W. Douglas, Asst. Atty. Gen., and Kathryn H. Baldwin and Robert J. Vollen, Attorneys, Department of Justice, and Thomas B. Mason, U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.
PER CURIAM:
We have examined the record in this case. We find the evidence sufficient to support the Secretary's finding that the claimant was not disabled within the critical period of this application. The summary judgment of the district court is affirmed.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? 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".
HUNT v. STANDARD BRANDS, Inc.
No. 6528.
Circuit Court of Appeals, Sixth Circuit.
June 8, 1934.
Rehearing Denied Oct. 9, 1934.
Charles P. Taft, 2d, and Edw. P. Moulinier, both of Cincinnati, Ohio, for appellant.
Joseph S. Graydon and Gregor B. Moorxnann, both of Cincinnati, Ohio (Joseph II. Head and Maxwell & Ramsey, all of Cincinnati, Ohio, on the brief), for appellee.
Before MOORMAN, HICKS, and SIMONS, Circuit Judges.
PER CURIAM.
Action by appellant, Hunt, receiver for Roberts & Hall, stockbrokers, to recover-damages of appellee, Standard Brands, Inc., for the conversion of two stock certificates of the Fldschmann Company, each for 100 shares. The ease was tried to a jury.
Appellant took no exception to the court’s charge and made no motion for a directed verdict. The jury returned a verdict for defendant.
Appellant entered a motion for a new trial upon the grounds that the verdict (1) was contrary to law; (2) was not, sustained by any substantial evidence; and (3) was contrary to the weight of the evidence. This motion was overruled and judgment was entered dismissing the action. He excepted and appealed, assigning as error that the verdict and judgment are contrary to the law and are not sustained by any substantial evidence. To be technically correct the assignment should have been that upon the undisputed evidence appellant was unquestionably entitled to a verdict as a matter of law; but, treating it as adequate, the question whether the evidence required a verdict for appellant is not reviewable in the absence of a motion by him for a directed verdict at the close of all the evidence. Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 F. 80, 82 (C. C. A. 6); Cleveland & Western Coal Co. v. Main Island Creek Coal Co., 297 F. 60, 62 (C. C. A. 6); Kalloch v. Hoagland, 239 F. 252, 253 (C. C. A. 6); Hessig-Ellis Drug Co. v. Grinnell Lithographing Co., 33 F.(2d) 449 (C. C. A. 6); Chesapeake & O. R. Co. v. Lushbaugh, 17 F.(2d) 986 (C. C.A. 6).
It is contended that the court abused its discretion in overruling the motion for a new trial because the evidence not only preponderated against the verdict but failed substantially to support it and there was therefore no basis for judgment. This complaint was not assigned as error and appellant is not entitled as a matter of right to have it considered. Kalloch v. Hoagland, supra; Rule 11 of this court.
This court may, however, waive the rule and determine whether the action on the motion constituted “plain error,” but the order, in any event, is not reviewable further than to determine whether there was 'a clear abuse of discretion. Hines v. Smith, 270 F. 132 (C. C. A. 6); Parker v. Elgin, 5 F.(2d) 562, 564 (C. C. A. 6); Kos v. Baltimore & Ohio R. Co., 28 F.(2d) 872 (C. C. A. 6); National Surety Co. v. Jean, 61 F.(2d) 197, 198 (C. C. A. 6); Pugh v. Bluff City Excursion Co., 177 F. 399 (C. C. A. 6). It is not apparent from the record that there was an abuse of discretion in the denial of the motion. Upon the single point whether the certificates were owned by Roberts & Hall at the time of the alleged conversion, we think that the court might justifiably have concluded that although the evidence (which we do not here analyze but 'which we have examined) might have permitted a verdict for appellant, it did not absolutely require it, that the issue was one peculiarly for the consideration of the jury upon the law as given in the charge.
The judgment of the District Court is affirmed.
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_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.
LARABEE FLOUR MILLS CORPORATION v. CITY FLOUR & GRAIN CO.
(Circuit Court of Appeals, Fourth Circuit.
October 20, 1925.)
No. 2228.
I. Trial @=>177 — Determination of facts submitted to court by request of both parties for directed verdict.
By request of both parties for directed verdict, determination of the facts is submitted to the court.
2. Appeal and error @=>997(3) — Finding on request by both parties for directed verdict is final.
Court’s determination of facts, submitted to it by request of both parties for directed verdict, is final.
3. Sales @=>150(1) — Buyer relieved from liability by seller’s canceiiation of contract before time for performance.
Seller having breached its contract by canceling it in advance of time for performance, forfeits its right of recovery thereunder, and relieves buyer from liability.
In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Henry II. Watkins, Judge.
Action by the Larabee Flour Mills Corporation against the City Flour & Grain Company. Judgment for defendant, and plaintiff brings error.
Affirmed.
R. B. Paslay, of Spartanburg, S. C. (Evans & Galbraith, of Spartanburg, S. C., on the brief), for plaintiff in error.
Jesse W. Boyd, of Spartanburg, S. C. (L. K. Brice and Brown & Boyd, all of Spartanburg, S. C., on the brief), for defendant in error.
Before WOODS, WADDILL, and ROSE, Circuit Judges.
WADDILL, Circuit Judge.
Plaintiff in error instituted this action in the United States District Court for the Western District of South Carolina, to recover damages for the alleged breach of a contract entered into with the defendant in error on the 9th of August, 1920, whereby plaintiff in error contracted to sell, and the defendant to purchase, 1,000 barrels of flour at $12.60 per barrel. This contract was made in behalf of the plaintiff in error by J. J. Wilkes, and on behalf of the defendant in error by W. B. Harrison, and set forth particularly the terms and conditions of the payments thereunder, to be made by draft drawn on a bank at Spartanburg, S. C., the homo place of the defendant corporation, time of shipment 60 days; and further provided that the contract was to be subject 'to confirmation by the seller at Atlanta, Ga., and that the terms and conditions were to bo binding on both parties to the contract, and could not be modified except by their written consent, and no verbal conditions, warrants, or modifications should be valid. The contract also provided for extensions of the times of delivery, and the method of procedure in case of default on the part of the parties in carrying- out the same. Simultaneously with entering into the contract, Wilkes, acting in behalf of his company, made the following provision for extension:
“City Flour & Grain Co., Spartanburg, S. C. — Gentlemen: With the attached contract for 1,000 barrels Larabee’s flour for shipment in 60 days, it is hereby agreed between buyer and seller that the Larabee Flour Mills Corp. will not force shipment on the buyer City Flour & Grain Co., or make any carrying ehai’ge on this contract, before March 1st, 1921. All other parts of this contract shall be binding on both buyer and seller. [Signed in ink] J. J. Wilkes. This 8/9/20 [written in pencil]. The above will apply on contract extended 11/4/20. J. J. Wilkes. 11/4/20.”
On the 9th of August, 1920, plaintiff in error wired defendant in error from Atlanta, Ga., “Confirm you thousand barrels Dixie Dream twelve sixty subject freight changes,” and on August 10th, 1920, a letter of confirmation was also written, as follows:
“Wo confirm sale made yon August 9, 1920, by J. J. Wilkes, as follows: 1,000 bbls. Dixie Dream Flour 98 lb. Cot. basis at $12.60 per bbl. f. o. b. mill — freight allowed Spartanburg. Terms: Arrival draft bank Bank of Spartanburg. Time of shipment 60 days. Subject adjustment of freight rates. For local office. [Signed] Larabee Flour Mills Corporation, by C. T. Bramblett, Branch Manager.”
On the 13th of August, defendant in error wrote plaintiff in error as follows: “Dear Sirs: Attention Mr. Bramblett. In your letter confirming flour sale made to us by your Mr. Wilkes, you failed to confirm the conditions on which this sale was made. Please confirm this by return ‘mail. We are not uneasy but what this part of the contract will be all right, as it is, but Mr. Wilkes explained that it would have to be confirmed by you. Thanking you for your prompt attention, we are,
“Yours very truly,
“[Signed] City Flour & Grain Co.”
On the 17th, of August, plaintiff in error wroto defendant in error, in reply, thanking them for the contract, and saying, among other things:
“Replying to your letter of August 13th in regard to flour sold you by our Mr. J. J. Wilkes some few days since. You may rest assured that your contract will be looked after in the manner which Mr. Wilkes described to yon. * * * ”
The memorandum of the extension made in pencil, signed on the 4th of November. 1920, seems to have'been the result of an extension'of the contract made on that, day at plaintiff in error’s request, ■ and caused doubtless in part by the desire not to put upon the face of the original paper the matter of - the extension to March 1, 1921, on account of some regulation prescribed by the Southeastern Millers’ Exchange, of which plaintiff' in error was, and defendant in error was not, a member, and the controversy came about chiefly because of the refusal of the plaintiff in error to accede to the extension of the time of delivery under the contract-to March 1, 1921, and of their demand for deliveries ait what they claim to be the expiration of the time thereof, on the 4th .of November, 1920, as of which date they canceled the contract, and subsequently instituted suit to recover the difference between the market price of the flour on that day, and the price named in the contract, to wit, $2.40 per barrel, which, together' with the entry charge of 50 cents per barrel, made a total of $2,900.
Was this extension of the time of delivery of the flour to the 1st of March, 1921, valid and binding between the parties?
Upon this question, issue was joined, a jury impaneled, and the ease fully heard, with the. result that at the conclusion of all the testimony both sides moved the court for an instructed verdict; and the learned Judge of the District Court, upon full eon-. sideration of the evidence, reached the conclusion that the extension of deliveries to the 1st of March, 1921, was a part and parcel of the contract entered into with plaintiff in error’s approval, and that, having breached their contract,by canceling the same on the 4th of November’previous, they were'not entitled to recover, and directed a verdict for the defendant in error, and dismissed the suit, with costs to the defendant. ' It is as to the correctness of this decision in the respect mentioned that we have to pass.
Where, as here, both parties- asked for a directed verdict, they thereby submitted to the court the ascertainment and final determination of the facts of the ease; and its conclusion in that respect is final and binding upon the parties to the controyersy, and which this court should accept and enforce in the proper disposition of the case. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654; Empire State Cattle Co. v. Atchison, T. & S. F. R., 210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Sena v. American Turquoise Co., 220 U. S. 497, 31 S. Ct. 488, 55 L. Ed. 559; Crescent Mfg. Co. v. Patterson (4 C. C. A.) 195 F. 382, 115 C. C. A. 284; New York v. Third Nat. Bank (2 Cir.) 221 F. 175, 137 C. C. A. 75; Williams v. Vreeland (3 Cir.) 244 F. 346, 352, 156 C. C. A. 632; Lockhart v. Tri-State Loan & Trust Co. (C. C. A. 5 Cir.) 268 F. 523, 525; Richman, etc., v. Mulcahy (C. C. A. 3 Cir.) 269 E. 786, 788; Martin v. Richmond F. & P. R. Co. (4 C. C. A.) 3 F.(2d) 26, 28.
Plaintiff in error, having breached its contract by canceling the same in advance of the time of its performance, thereby forfeited its right of recovery thereunder, and relieved the defendant in error from liability. Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953, and eases cited; The Eliza Lines, 199 U. S. 119, 128, 26 S. Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406; Central Trust Co. v. Chicago, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580.
The decision of the District Court should be affirmed, with costs.
Affirmed.
The late Judge WOODS concurred' in the affirmance of the judgment below, but died before he passed upon the above opinion.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_method
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
DONNELLY v. CONSOLIDATED INV. TRUST et al.
No. 3322.
Circuit Court of Appeals, First Circuit.
Sept. 27, 1938.
Edward C. Park, of Boston, Mass. (Lothrop Withington, of Boston, Mass., on the brief), for appellant.
William T. Snow, of Boston, Mass, ficharles S. Maddock and Gaston, Snow, Hunt, Rice & Boyd, all of Boston, Mass., on the brief), for appellee Consolidated Inv. Trust.
Charles P. Curtis,’Jr., of Boston, Mass. (John L. Hall, Philip H. Rhinelander, Rodgers Donaldson, and Choate, Hall & Stewart, all of Boston, Mass., on the brief), for appellee Dumaines.
Before WILSON and MORTON, Circuit Judges, and MAHONEY, District Judge.
MORTON, Circuit Judge.
This is an appeal in a bankruptcy case. The principal question presented concerns the right of Dumaine and Winsor to purchase and hold shares of the Amoskeag Company and the Amoskeag Manufacturing Company and to receive certain liquidating dividends on ■ the Manufacturing Company stock. There is also a question as to the appellant’s standing to appeal. The facts are stated in very condensed form in the Referee’s certificate.
The'Amoskeag Company was a holding company in the form of a Massachusetts trust. It rested on an agreement or declaration of trust, and the beneficial interests were represented by transferable shares,— a common form of business organization,. Such organizations are for purposes of taxation regarded as corporations which they much resemble, the trustees being analogous to directors and the shareholders to corporate stockholders. The shares of the Amoskeag Company were listed and dealt in on the Boston Stock Exchange. Both Dumaine and Winsor were trustees of it. The trust instrument is not before us nor is there any finding as to their duties under it. Presumably they were to hold and manage the property of the trust for the benefit of the certificate holders. The property consisted of all the shares of the Amoskeag Manufacturing Company, which was also a Massachusetts trust of similar character. It operated large textile and finishing mills in Manchester, New Hampshire, and had substantial assets.
In the summer of 1927 an offer was made by outside parties to purchase the assets of the Amoskeag Company, i. e., the shares of the Amoskeag Manufacturing Company at a price which would realize for the common shares of the holding company $90 each. This was substantially more than they were then selling for in the market. The avowed purpose of the buyers was complete liquidation of the properties. Dumaine, who was a trustee of the Manufacturing Company and treasurer of it, opposed the sale. Winsor, who was also one of the trustees and was a partner in the bankifig house of Kidder, Peabody & Co., caused letters to be sent by his firm to all shareholders in the Amoskeag Company, saying that Kidder, Peabody & Co. regarded the shares as worth more than the then market-value and advised shareholders not to sell. About this time, — the date is not stated, — what may be regarded as^ a counter-plan was formulated by Dumaine and Winsor and other trustees acting with them. It contemplated partial, not- complete, liquidation of the property. If adopted it would make the shares worth substantially more than the existing ’market price of them. After this counter-plan was formulated but before any public announcement of it, Dumaine and Winsor begqn purchasing in the open market enough shares of the Amoskeag Company to secure voting control and the adoption of their own plan. Their purpose, as found by the Referee, in formulating their counter-plan and in endeavoring to put it through, was “First, to give timid stockholders a chance to get their money out of the textile business. Second, to avoid the possibility of control by an outside group whose sole purpose was to liquidate.” (Referee’s Certificate.) The Kidder, Peabody letter to shareholders was sent before any of the Dumaine and Winsor purchases were made. Some of their purchases were made before and some after the counter-plan had been formulated and made public. Dumaine and Winsor bought “all the stock they wanted at figures well below the $90 offered by the outsiders and well below the figures which they knew the stock would command in their own plan of liquidation. They obtained all the stock they needed to secure the adoption of the trustees’ plan and assured themselves a substantial profit at the same time.” (Referee’s Certificate.) Soon after the purchases in question were completed the trustees’ plan for partial liquidation was adopted and each shareholder was offered $42 in cash, a bond of the Manufacturing Company “worth $40.-00”, and a share of the latter, stock for each share in the holding company. Dumaine and Winsor accepted this offer as did many other shareholders. They real7 ized enough in cash and on the sale of the bonds to cover all expenses of the purchase of the stock. “They gained at least the value of the stock in the operating trust. (Referee’s Certificate.) The stock in the operating trust so acquired by Dumaine and Winsor was in turn passed on by them to Consolidated Investment Trust, the appellee in this case, and to “Dumaines,” a similar trust. These trusts are subject to any disability which affected Winsor and Dumaine personally.
The Manufacturing Company petitioned for reorganization under section 77B, Bankr.Act, 11 U.S.C.A. § 207. After all direct claims had been paid a surplus remained distributable to its shareholders, and the Referee made the order which is appealed from. It is called “a first dividend in liquidation” “at the rate of $2.00 per share.” The trustees in liquidation are directed to pay a stated sum to the debtor to be distributed by it through its agent, the Old Colony Trust Co. Detailed provisions are made with respect to the presentation and endorsement of certificates and other formal matters. Under this order the shares purchased by Dumaine and Winsor as above stated are entitled to participate.
It is the contention of the appellant, Donnelly, that by reason of Dumaine’s and Winsor’s positions as trustees they could not rightfully purchase stock of the Amoskeag Company, nor receive any distributions or dividends upon it. Donnelly’s only interest in the matter is as one of the shareholders in the original trust who, by exchange of shares under the trustees’ plan, received stock in the debtor. He contends that the Dumaine and Winsor shares should be regarded as cancelled, and that the amounts payable upon them in the liquidation, at least to the extent to which they represented profits, should be apportioned among the other shareholders. Both the Referee and the District Judge rejected the contention. The District Judge permitted an appeal in the name of the trustees; otherwise it is quite clear” that Donnelly would have no standing either on a direct appeal under section 25, 11 U.S. C.A. § 48, or on an appeal by allowance under section 24(a), 11 U.S.C.A. § 47(a). There is doubt as to the effect- of the District Judge’s order allowing him to appeal in the name of the trustees. We pass by these questions because we think it easier and more satisfactory to dispose of the case on the merits.
A trustee may not legally take or hold any interest or position in conflict with the trusts which he has undertaken, nor may he make a personal profit out of transactions made on account of the trust. Familiar examples of this are buying from or selling to the trust by a trustee in such a way that he makes a profit directly or indirectly. Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418. This principle, on which the appellant relies, has no application in the present case. The trust was not a party to the contracts by which Dumaine and Winsor acquired their stock; nor was it affected by these transactions except that one shareholder was substituted for another. The only persons affected by such contracts were the parties to them. Dumaine’s and Winsor’s purchases of Amoskeag shares did not in the least affect Donnelly’s interest as a shareholder; the number of shares was not altered nor the amount payable on each share, and it did not matter to him who the other owners of shares were. The purchases were not as he contends utterly illegal and void; no authority is cited in support of this position, and we are aware of none. The disability of a trustee is against profiting personally at the expense of his trust; and this disability will be rigidly enforced. Nothing of that sort occurred here as to Donnelly. Whether there was improper profiting on the part of Dumaine and Winsor at the expense of the shareholders who sold to them is a distinctly different question, not presented by this appeal, on which the complete facts are not before us, and on which we express no opinion.
The order appealed from is affirmed with costs in both courts.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. 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".
John S. SERVICE, Appellant, v. John Foster DULLES et al., Appellees.
No. 12958.
United States Court of Appeals District of Columbia Circuit.
Argued April 13, 1956.
Decided June 14, 1956.
Mr. C. E. Rhetts, Washington, D. C., for appellant.
Mr. Donald B. MacGuineas, Atty., Dept, of Justice, with whom Mr. Paul A. Sweeney, Atty., Dept, of Justice, was on the brief, for appellees.
Before WILBUR K. MILLER, WASHINGTON and BASTIAN, Circuit Judges.
BASTIAN, Circuit Judge.
This is an appeal from a judgment granting defendants’, (appellees’) motion for ’ summary, j udgment.
Plaintiff (áppéllant) ' was.-formerly a Foreign Service officer, who was dismissed by action of former Secretary of State Acheson. Appellees are the present Secretary of State,- members of. the Civil Service Commission, and the former members of the Loyalty Review Board of the Civil Set-vice Commission, established by Executive Order No. 9835, 5 U.S.C.A. § 631 note. '
Appellant filed this suit to obtain a judgment declaring his discharge void and invalid; to obtain reinstatement to his employment and his salary from-the date of his discharge to the date of his reinstatement; for the expunging from the record of statements reflecting that this dismissal had been on the ground that there was or is reasonable doubt as to his loyalty to thé Government- of the United States; and for certain other relief. On cross-motions for summary judgment, the District Court dismissed the case as moot as to the former members of the Loyalty Review Board of thé Civil Service Commission as that Board had ceased to exist and', as' to them, the action had abated; . directed the Civil Service Commission to expunge from its record the Loyalty Review Board’s finding that there was reasonable doubt as to appellant’s loyalty to the Government of the United States; granted appellees’ cross-motion for summary judgment and denied appellant’s motion for summary judgment.
The record discloses that under date of March 24, 1950, the Chairman of the Loyalty Security Board .of the Department of State notified appellant that a hearing had. been scheduled under § 395 of the Regulations and Procedures of the Department of State to consider charges, against him, “with' a view to making a recommendation to the Secretary of State whether or not, under the provisions of the Department of State Appropriation Act, 1950, Section 104, Public Law 179, 81st Congress, First Session, your [his]: employment in the Department should b.e terminated ,in the interest of the United States.” The letter setting forth the notification of: charges read in part as. follows:
“Under date of March 21, 1947, the President -issued Executive Order 9835 prescribing procedures for the administration of an Employee-■Loyalty Program in the Executive Branch of the Government. Under-, date of March 11, 1949, the Depart-', ment of State promulgated regulations and procedures, a copy of which is áttached, setting forth -the revised loyalty and security principles and procedures relating to employees of the Department of State.
“In the course of investigations conducted pursuant to this loyalty and security program certain information has been received by the Department of State which, after initial consideration by the Loyalty Security Board of the Department of State, necessitates the formulation of a charge against you. * * * ”
The specific charges were appellant’s disloyalty to the United States and the claim that he was a security risk.
Following extensive hearings, the State Department Loyalty Board concluded that reasonable grounds did not exist for believing that appellant was disloyal to the United States and that he did not constitute a security risk to the Department of State. This was approved by the Deputy Under Secretary of State.
After the issuance of Executive Order No. 10241, amending the standard established by Executive Order No. 9835 for removal from employment on loyalty grounds, the Loyalty Security Board of the Department of State again considered appellant’s case and determined that, under Executive Order No. 10241, 5 U.S.C.A. § 631 note, no reasonable doubt existed as to appellant’s loyalty to the United States. This decision likewise was approved by the Deputy Under Secretary of State.
Thereafter, the Loyalty Review Board of the Civil Service Commission advised appellant that it would hold a new hearing based on the charges filed by the Department of State Loyalty Security Board; and, after intermediate proceedings, the Civil Service Commission Loyalty Review Board rendered its opinion holding that there was reasonable doubt about appellant’s loyalty. The action subsequently taken by Secretary Acheson appears from his affidavit filed in the District Court, as follows:
“3. On that same day I considered what action should be taken in the light of the opinion of the Loyalty Review Board, recognizing that whatever action taken would be of utmost importance to the administration of the Government Employees Loyalty Program. I understood that the responsibility was vested in me to make the necessary determination under both Executive Order No. 9835, as amended, and under Section 103 of Public Law 188, 82d Congress, as to what action to take.
“4. Acting in the exercise of the authority vested in me as Secretary of State by Executive Order 9835, as amended by Executive Order 10241, and also by Section 103 of Public Law 188, 82d Congress (65 Stat. 575, 581), I made a determination to terminate the services of Mr. Service as a Foreign Service Officer in the Foreign Service of the United States.
“5. I made that determination solely as the result of the finding of the Loyalty Review Board and as a result of my review of the opinion of that Board. In making this determination, I did not read the testimony taken in the proceedings in Mr. Service’s case before the Loyalty Review Board of the Civil Service Commission. I did not make any independent determination of my own as to whether on the evidence submitted before those boards there was reasonable doubt as to Mr. Service’s loyalty. I made no independent judgment on the record in this case. There was nothing in the opinion of the Loyalty Review Board which would make it incompatible with the exercise of my responsibilities as Secretary of State to act on it. I deemed it appropriate and advisable to act on the basis of the finding and opinion of the Loyalty Review Board. In determining to terminate the employment of Mr. Service, I did not consider that I was legally bound or required by the opinion of the Loyalty Review Board to take such action. On the contrary, I considered that the opinion of the Loyalty Review Board was merely an advisory recommendation to me and that I was legally free to exercise my own judgment as to whether Mr. Service’s employment should be terminated and I did so exercise that judgment. * * * ”
The Supreme Court, in Peters v. Hobby, 1955, 349 U.S. 331, 75 S.Ct. 790, 794, 99 L.Ed. 1129, held that the power of the Loyalty Review Board of the Civil Service Commission was limited to “persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency.” Accordingly, the District Court held that the decision of the Loyalty Review Board was a nullity in a case where (like the present one) no such recommendation for dismissal had been made.
The appellant argues that the discharge was unlawful because the Secretary's action must be sustainable on the grounds which he invoked to support it; further, “by relying ‘solely’ on the invalid finding of the Loyalty Review Board and failing to make an independent determination on all the evidence and by denying appellant an opportunity to appeal to him, the Secretary violated his own regulations prescribing the manner in which he would exercise his Mc-Carran Rider authority and thereby denied appellant the procedural and substantive guarantees of these regulations.” It is also argued that the Secretary “exercised his discretion under the McCarran Rider, if at all, in an arbitrary and illegal manner in that he misapprehended the legal validity of the Loyalty Review Board finding on which he relied ‘solely’ and in that he failed to make an independent determination of his own that appellant’s discharge was necessary or advisable in the interests of the United States.”
Beginning in 1947 and continuing through the time covered by appellant’s dismissal, Congress had enacted riders, all similar to Section 104, Public Law 179, quoted in note 1, supra, to the several appropriations acts covering the State Department, authorizing the Secretary of State to summarily dismiss officers and employees of that department “whenever he shall deem such termination necessary or advisable in the interests of the United States.”
The notice of termination of appellant’s employment stated that such action was taken pursuant to the above quoted provision for summary dismissal as well as under Executive Order No. 9835, as amended by Executive Order No. 10241. The Secretary of State, in his affidavit filed in the District Court, stated that his action was taken under Executive Order No. 9835, as amended by Executive Order No. 10241, and also under Section 103 of Public Law 188, 82d Congress (the same provision as Section 104 of Public Law 179, 81st Congress, note 1, supra.)
As well expressed by Judge Curran, of the District Court:
“This Court cannot, of course, review the correctness of the former Secretary of State’s determination. Its function is limited to determining whether any procedural requirement of the statute was violated in plaintiff’s discharge.
“Under Public Law 188 there was one procedural requirement: that the Secretary of State must determine in his discretion that the termination of plaintiff’s employment was necessary or advisable in the interests of the United States. That determination the former Secretary of State made.
“Plaintiff’s contention that by virtue of the State Department’s regulations he could not be dismissed under Public Law 188 unless the procedures prescribed by Executive Order 9835 were followed is without merit. It was not the intent of Congress that the Secretary of State bind himself to follow the provisions of Executive Order 9835 in dismissing employees under Public Law 188. This power of summary dismissal would not have been granted the Secretary of State by the Congress if the Congress was satisfied that the interests of this country were adequately protected by Executive Order 9835.
“Under Public Law 188 plaintiff could have been summarily dismissed without notice of charges, hearing, or appeal.”
The District Court then concluded that appellant was validly discharged under Public Law 188. Under the circumstances of this case, we must agree.
We also think that the District Court was entirely correct in directing the Civil Service Commission to expunge from its record the Loyalty Review Board’s finding that there was reasonable doubt as to appellant’s loyalty to the United States as, under the Peters case, supra, the action of that Board was a nullity.
The judgment of the District Court is
Affirmed.
. Public Law 179, § 104, provides as follows: -“Sec. 104. Notwithstanding the provisions of section 6 of,the Act of August 24, 1912 (37 Stat. 555), or the’ provisions of any other law, the Secretary of State 'may, in "his absolute' discretion, during the current fiscal year, terminate the employment of any officer or .employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States.” 63 Stat. 456.
. The term “McCarran Rider” has reference to section 104, Public Law 179, note 1, supra, and similar subsequent enactments.
. We recently held a similar statute to be constitutional in the case of Scher v. Weeks, 1956, 97 U.S.App.D.C. 335, 231 F. 2d 494, certiorari denied 1956, 76 S.Ct. 1030.
. It is only fair to add that since the finding of the Review Board is a nullity, and since appellant’s discharge is sustained only under Public Law 188, the following quotation from note 2 in Scher v. Weeks, supra, would seem equally applicable in this case: “It should bo noted, however, that in the case at bar appellant’s discharge carries no implication that he might be either disloyal or a security risk.”
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_search
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
UNITED STATES of America v. James LEFTWICH et al. Appeal of Clarence Frederick WRIGHT, No. 71-1283. Appeal of Charles CARPENTER, No. 71-1284.
Nos. 71-1283, 71-1284.
United States Court of Appeals, Third Circuit.
No. 71-1283 submitted Feb. 11, 1972.
No. 71-1284 argued Feb. 11, 1972.
Decided May 31, 1972.
Clarence F. Wright, pro se.
Harold Chipperson, East Orange, N. J., for appellant Carpenter.
James D. Fornari, Asst. U. S. Atty., Newark, N. J., for appellee.
Before MARIS and MAX ROSENN, Circuit Judges and VAN ARTSDALEN, District Judge.
OPINION OF THE COURT
MARIS, Circuit Judge.
These are appeals from judgments of conviction entered in the District Court for the. District of New Jersey pursuant to jury verdicts finding Clarence Frederick Wright and Charles Carpenter, co-defendants in a bank robbery case, guilty on the two counts of an indictment charging violations of 18 U.S.C. §§ 2113(a) and (d). The defendants Wright and Carpenter were charged, jointly with James Leftwich, Lawrence Pierce, John Sloan, Edmond Louis Carter, Jr., and Seaborn Drew Howell, with robbing a federally insured savings and loan association of the sum of $5,734.00, using dangerous weapons, and putting in jeopardy the lives of certain individuals. Prior to trial, the indictment was dismissed as to defendant Leftwich who had died. The trial was severed as to defendant Sloan, who had entered a plea of guilty to count one of the indictment and who later testified as a Government witness. During the trial the Government informed the trial judge that it would call defendant Pierce as a witness. Pierce was thereupon severed as a defendant and, subsequently, the indictment was dismissed as to him. At the close of the Government’s case the trial judge granted a motion of the defendant Carter for a judgment of acquittal. The jury returned verdicts of guilty on both counts against defendants Wright, Carpenter and Howell. The trial judge set aside the verdict against defendant Howell and entered a judgment of acquittal as to him. The defendants Wright and Carpenter were each sentenced to 15 years imprisonment and judgments were entered accordingly. From these judgments the defendants Wright and Carpenter took the appeals now before us. The two appeals were consolidated for the purpose of consideration. The appellants each raise a number of identical questions. In addition, the defendant Wright raises further questions.
We first address ourselves to the issues which have been raised by both defendants.
I
They contend that the trial judge committed reversible error in failing on voir dire examination, to ask the prospective jurors the question: “Does the fact that the defendants are all colored prevent the jury from fairly and impartially deciding the case?” This was one of a number of written questions which the defendant Wright submitted to the trial judge. All the defendants were black and all were represented by counsel. The record discloses that the trial judge went to considerable length in examining the prospective jurors in an effort to secure an impartial jury which would decide fairly as between the Government and the defendants, but he did not ask the specific question submitted by defendant Wright as above quoted. However, at the close of the voir dire examination of the twelve jurors initially selected he stated that he had substantially covered the written requests for supplementation of his interrogation. At this statement and at his question whether they were content counsel remained silent, raising no objection to the trial judge’s failure to propound the question in the specific language requested. Thrice thereafter during the proceedings counsel stated that the jury was satisfactory and after alternate jurors had been drawn again stated, in response to a question from the trial judge, that the jury was “Eminently satisfactory.” The jury was then sworn and instructed to appear for the trial on the following Monday morning and the remaining prospective jurors were excused. On the following Monday morning counsel for the defendants informed the trial judge that they now objected to his failure on the preceding Friday to interrogate the prospective jurors with respect to “the treatment of the defendants, be they black or white, in the same manner, and the fact that the jury would not, because of their color alone, find them to be telling truths or lies on that basis.” The trial judge did not sustain the objection but proceeded with the trial.
In support of their contention that the trial judge erred in failing to make the requested inquiry of the jurors as to racial prejudice, they cite Aldridge v. United States, 1931, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054; Frasier v. United States, 1 Cir. 1959, 267 F.2d 62; King v. United States, 1966, 124 U.S.App.D.C. 138, 362 F.2d 968; United States v. Gore, 4 Cir. 1970, 435 F.2d 1110, and United States v. Carter, 6 Cir. 1971, 440 F.2d 1132. It is true that in those cases it was held reversible error to refuse to interrogate the jurors as to possible racial prejudice. But we do not think that they are applicable to the facts of this case. For here the trial judge went to pains to instruct the jurors that impartiality was required and to inquire of them whether they would be completely impartial as between the Government and the defendants and whether they “could decide the ease fairly and without prejudice,” and, although counsel for defendant Wright had requested the trial judge to inquire as to racial prejudice, this request was not pressed on the day the jury was empanelled but, on the contrary, as we have seen, counsel remained silent when the trial judge stated his belief that he had covered the substance of all their requests and they thereafter stated repeatedly that the jury was satisfactory and that they were content. The voir dire examination had been completed, the selected jurors sworn and the other prospective jurors excused on a Friday. It was not, as we have seen, until the following Monday that defendants raised the objection which they now press. We think that the objection came too late and that under the circumstances the trial judge’s instructions to and in interrogation of the jurors on Friday, when they were being selected, adequately covered the matter of prejudice, racial or other, as counsel after hearing the judge’s statements on that day obviously believed that they did.
II
The defendants contend that the district court erred in admitting evidence that three of the defendants had stolen an automobile three days before the robbery, arguing that this evidence was so prejudicial as to deny them a fair trial. It is, of course, the rule that evidence of other offenses wholly independent of the one charged is inadmissible when offered merely to show character or proclivity toward criminal eon-duct. But this rule is subject to the exception that such evidence is admissible when offered for another proper purpose, such as preparation for the crime charged. United States v. Persico, 2 Cir. 1970, 425 F.2d 1375, 1384, cert. den. 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108; Ignacio v. People of Territory of Guam, 9 Cir. 1969, 413 F.2d 513, 519-520, cert. den. 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124; Rule 404(b), Proposed Rules of Evidence for the United States District Courts and Magistrates. Here the evidence indicated that the automobile stolen was used by the defendants as a getaway car and was found parked close to the apartment where the defendants gathered after the robbery. We think that the trial judge did not err in admitting evidence of the automobile theft thus shown to have been committed in preparation for the commission of the crime with which the defendants are here charged.
Ill
The defendants contend that it was error to permit a codefendant, Pierce, to testify as a witness for the Government when he had been present in the courtroom during a period of time during which an order had been in effect excluding all witnesses from the courtroom other than the witness actually testifying. There are two answers to this contention. The first is that Pierce as a defendant had a constitutional right to be present in the courtroom during the trial so long as he was one of the defendants then on trial, as he continued to be until his case was severed which took place after the immediately preceding witness had finished his direct testimony and nearly all of his testimony on cross-examination. And the second answer is that a witness is not disqualified from testifying merely because of a violation of a sequestration order but may nonetheless be permitted to testify in the sound discretion of the court. Holder v. United States, 1893, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010. Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, upon which the defendants rely, is wholly distinguishable on its facts. There was no abuse of discretion in permitting Pierce to testify for the Government.
IV
The defendants contend that the district court erred in denying their motion for a new trial based on after discovered evidence which, they assert, established that they were denied a fair trial by reason of perjured testimony of defendant Pierce knowingly offered by the Government. They claimed that defendant Pierce in an affidavit recanted a part of his testimony at trial and indicated that he was coerced into giving it by his counsel and counsel for the Government. The district court held three hearings on the motion, taking the testimony of Pierce, of his counsel, of Government counsel and of an FBI agent. The court found that the testimony thus adduced did not support the allegations of the motion and accordingly denied it. It is settled that such a factual determination by the district court in passing upon a motion for a new trial based upon after discovered evidence will not be set aside unless it clearly appears that the findings are wholly unsupported by the evidence. United States v. Johnson, 1946, 327 U.S. 106, 111-113, 66 S.Ct. 464, 90 L.Ed. 562. We have examined the evidence here. No useful purpose would be served by recounting it. Suffice it to say that it amply supports the court’s findings. There is no merit in this contention of the defendants.
V
The defendants contend that they were prejudiced by improper remarks by Government counsel. They allege that Government counsel in addressing the jury usurped the functions of the trial judge in defining the law, made allegations which were not proved during the trial and gave the defendants “a criminal record by characterization and association.” All this, they urge, was prejudicial within the rule of Berger v. United States, 1935, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. We cannot agree that the remarks of Government counsel, read in their proper context, were “foul blows” within the meaning of the Berger rule. Trials are rarely, if ever, perfect and improprieties of argument by counsel to the jury do not call for a new trial unless they are so gross as probably to prejudice the defendant and the prejudice has not been neutralized by the trial judge before submission of the case to the jury. Keeble v. United States, 8 Cir. 1965, 347 F.2d 951, 956. In this regard the trial judge who heard the argument has considerable discretion in determining whether lasting prejudice to a defendant has resulted. Cline v. United States, 8 Cir. 1968, 395 F.2d 138, 141-142. Here the trial judge carefully instructed the jury that the arguments of counsel were not evidence. Under all the circumstances we are not persuaded that counsel’s statements had any prejudicial effect upon the jury.
VI
The defendants object to the trial judge’s telling the jury at the close of counsels’ summations late in the afternoon that he would not charge the jury “tonight for the reason that I don’t like to have Jurors, particularly lady Jurors, going home in the darkness in this city.” Defendants’ counsel excepted to this statement as prejudicial for the reason, as they asserted, that “the obvious implication behind that is that crime in the City of Newark ... is generally depicted as being attributable to Negro citizens,” that this was the inference conveyed to the jury and that since some of the defendants came from Newark the comment was prejudicial to them. The contention is ingenious but in our opinion wholly without merit.
VII
Finally the defendants join in asserting that since the trial judge granted a motion to dismiss the indictment as to defendant Carter following the Government’s case in chief the jury should have found the remaining defendants not guilty since the evidence as to them was identical. Their position is buttressed, they argue, by the fact that the trial judge, after the verdict of guilty was rendered, granted defendant Howell’s motion for an acquittal. The argument ignores the fact, however, that the defendants Wright and Carpenter were different individuals from Carter and Howell, and played different roles in the action involved. It was, therefore, quite possible that evidence which failed to establish the connection of Carter and Howell with the robbery did satisfy the judge and jury that Wright and Carpenter were participants. In any event, it is not for this court on appeal to weigh the evidence. The verdicts of the jury must be sustained if there is substantial evidence to support them, taking the view most favorable to the Government. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. We are satisfied that there was substantial evidence in this case to support the verdicts against defendants Wright and Carpenter.
We turn, then, to the additional claims which defendant Wright makes on his own behalf.
VIII
Wright asserts that the Government deliberately withheld favorable information which revealed that defendant Sloan, and not he, had stolen the getaway car. This contention is, however, wholly based upon an inadvertent misstatement by Government counsel in his opening to the jury in which, as the context clearly shows, the word “car” was erroneously used for “apartment.” It has no merit.
IX
Wright contends that the Government knew that the owner of the stolen getaway car had positively identified defendant Sloan as one of the individuals who robbed him and took his car but suppressed this evidence to Wright’s prejudice. The short answer to this contention is that as the result of defendants’ counsel’s objections evidence as to the men who took the car was rejected, the owner’s testimony being limited solely to the fact that his automobile and registration were stolen. While prosecuting officers have an obligation to disclose material exculpatory evidence there must be some evidence to support a charge of suppression of such evidence. There was none here.
X
Wright next contends that since, as he alleges, he was arrested without a warrant and without probable cause, the search incidental to the arrest was unlawful and the district court, therefore, erred in refusing to suppress the automobile registration found in a search of his clothes following his arrest.
At the hearing on the motion to suppress, Government counsel informed the district court that the automobile registration alone was material to the ease and that all other things taken during the search would be returned to Wright. At the hearing Keogh, an agent of the FBI, testified that he, together with agents Genakos, Frank and Gerrity, went to Wright’s residence on April 18, 1969, about 10:20 A.M., that a warrant for the arrest of Wright had been issued and was in the file of the FBI in Newark but the agents did not have the warrant with them; that Wright was dressed in pajamas; that he was advised that he was under arrest and was searched. Agent Gerrity testified that Wright requested clothing before being taken to 'the FBI office in Newark; that he was brought upstairs to his room and the clothes taken from the closet were searched; that in the pocket of a jacket Gerrity found a New Jersey motor vehicle registration in the name of the individual whose car had been stolen and used as a getaway car in the bank robbery for which Wright was being arrested, and that as a result of the search other items were seized also. Wright’s motion to suppress the automobile registration was based on the ground that no evidence was produced to support any of the facts set forth in the affidavit upon which the warrant was issued; that the affidavit was based upon a statement made by defendant Leftwich, the validity of which was attacked as procured under duress and promises of benefit. Agent Keogh testified as to his familiarity with the bank robbery here involved, that he had arrested defendants Leftwich and Pierce and thereafter Leftwich was interrogated and furnished a statement, that he was familiar with the contents of the affidavit used in support of the complaint and warrant filed in this case, and that he had knowledge of defendant Wright’s involvement in the bank robbery before he went to Wright’s home. After hearing the evidence, the district judge orally found that the arrest warrant which was dated April 18, 1969, was in effect at the time of the arrest and that the warrant was supported by an affidavit which established probable cause and, concluding that the arrest was lawful and that any search that was conducted was incidental to a lawful arrest, the motion to suppress the evidence obtained by the search was denied.
Wright says that no warrant was issued or obtained until the motion •to suppress the evidence was filed. The district court, however, found that the warrant was issued on April 18th, the day of Wright’s arrest and we are satisfied that the finding was correct. While it is true that the arresting agents did not have the warrant with them at the time of arrest, they were not required to have it in their possession if it was outstanding at that time. Rule 4(c) (3), F.R.Crim.P., Gill v. United States, 5 Cir. 1970, 421 F.2d 1353, 1355.
The defendant Wright challenges the sufficiency of the affidavit used in obtaining the search warrant in this case. The testimony presented at the hearing on the motion to suppress showed that the facts were based on the statements of defendant Leftwich, who implicated Wright and others, as well as himself, in the commission of the bank robbery. The district court found the information obtained by the FBI was sufficient to establish probable cause for defendant’s arrest and we agree. See United States v. Ventresca, 1965, 380 U.S. 102, 107-108, 85 S.Ct. 741, 13 L.Ed.2d 684, and United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.
This brings us to the question whether the search conducted by the agents was reasonable. It is undisputed that Wright required street clothes in order to accompany the FBI Agents to the Newark office and that, in his presence but prior to handing it to him, the agent searched the jacket in which the New Jersey motor vehicle registration was found. The defendant Wright does not here contend that this search was unreasonable and we are clear that it was entirely reasonable. His claim is that the search of his entire house was unreasonable. However, the only evidence which was admitted against the defendant Wright was the motor vehicle registration and the search for and seizure of that is, as we have said, not claimed to be violative of his constitutional rights. All the other items seized by the agents were returned to the defendant and whether they were or were not lawfully seized was not before the district court nor is that question before this court on this appeal. We conclude that the district court did not err in holding that the search for and seizure of the registration was valid. The motion to suppress that evidence was properly denied.
XI
Wright further contends that cruel and unusual punishments were inflicted upon him during his pretrial detention and prior to sentencing. These, however, are matters which are not before us on this appeal.
XII
Wright also contends that an illegal sentence was imposed upon him. We find, however, that the length of the term of his imprisonment is within that authorized by law. 18 U.S.C. § 2113(d).
XIII
And, finally, Wright claims that he was denied an adequate record to make a full showing on appeal. Our review of the record and the numerous objections of the defendant satisfies us that there is very little, if any, of the record which was not available to him and that he was not prejudiced in this regard.
Finding no error in the record in this ease the judgments of conviction entered in the district court against defendants Clarence Frederick Wright and Charles Carpenter will be affirmed.
. “The reason why I am putting these questions or why I will put these questions is because we want to find, if possible, a completely impartial jury to try this, and, for that matter, any other case in which a jury is selected.” [Tr. 25-26]
“¡Slow we are in the course of selecting an impartial jury. We believe that that is important . . . ” [Tr. 47]
“Do you understand we are selecting a jury for the purpose of achieving complete impartiality as between the Government on the one hand and the defendants on the other?” [Tr. 59]
“Do you believe you can serve as a completely impartial juror in a case of the nature which I have disclosed?” [Tr. 67]
“You think you could decide the case fairly and without prejudice as between the Government and the defendants?” [Tr. 76]
“Do you believe that in the light of your past experience and your husband’s business that you would have any difficulty in deciding such a case as between the Government and the defendants with complete impartiality?” [Tr. 77]
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_applfrom
|
D
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff-Appellee, v. 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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_appel1_7_4
|
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.
Kiran K. SHAH, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.
No. 86-5548.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 13, 1987.
Decided April 20, 1987.
James C. Hickey, argued, Ewen, MacKenzie and Peden, Louisville, Ky., for plaintiff-appellant.
Edwin Hopson, Louisville, Ky.,for defendant-appellee.
Before MERRITT and MILBURN, Circuit Judges; and PECK, Senior Circuit Judge.
MILBURN, Circuit Judge.
Plaintiff Kiran K. Shah appeals the summary judgment for defendant General Electric Co. (“GE”) in this action alleging that GE terminated plaintiffs employment because of his color and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (“Title VII”), and the Civil Rights Act of May 31, 1870, 42 U.S.C. § 1981 (“section 1981”). Plaintiff further alleged that GE discharged him without just cause and without following the policies and procedures set forth in the company’s Organization and Policy Guide and thereby breached the employment contract between plaintiff and GE. For the reasons that follow, we affirm the dismissal of plaintiff's federal claims but reverse the grant of summary judgment on the breach of contract claim.
I.
Plaintiff, a dark-skinned native of India, has been a citizen of the United States since 1975. He holds a bachelor’s degree in Chemical Engineering from Bombay University in India, a Master’s Degree in Chemical Engineering from Northwestern University in Evanston, Illinois, and an MBA in Marketing and Finance from the University of New Haven, Connecticut. After a short tenure teaching Strategic Planning and Marketing in the graduate program at the University of New Haven, plaintiff was employed by Uniroyal from 1964 to 1979.
In February 1980, GE offered plaintiff the “relatively high position” of Manager of Business Development and Planning for the Air Conditioning Business Division (“ACBD”) at GE’s Appliance Park Facility in Louisville, Kentucky. This position was the second most important position in planning at ACBD, and plaintiff’s starting salary of Sixty Thousand Dollars ($60,000.00) per annum was the highest amount paid any exempt employee not on Division Staff. Plaintiff was also eligible for GE’s Incentive Compensation Plan.
On discovery, plaintiff testified that during the interview process, he was shown a GE Organization and Policy Guide and that he received a copy after he began his employment. The manual contained GE’s policies on “Treatment of Less than Satisfactory Performance.” Plaintiff further testified that he was told that GE did not terminate its employees “without a just and sufficient cause.”
Plaintiff began his employment with GE on April 1,1980, and worked without direct supervision until June 1980, when W.T. Hewitt became his supervisor. Hewitt’s assessment of plaintiff “was quite complimentary with regard to his performance, and was quite positive with regard to his promotability.” Mr. Palmer, Manager of Organization and Manpower for ACBD, further deposed that there was nothing negative in plaintiff’s personnel file prior to his termination.
In July 1981, plaintiff’s immediate supervisor resigned, and plaintiff was appointed acting manager. On August 26, 1981, William Sharpstone was named manager and plaintiff returned to the number two position. The district court observed that, “For whatever reason, relations between Sharpstone and plaintiff were less than cordial.”
Plaintiff further testified on discovery that he met Sharpstone for the first time at the airport for a trip to Tyler, Texas. Plaintiff stated that Sharpstone refused to shake hands or to speak with him during the plane ride, and that in the succeeding months, Sharpstone would not respond to his memoranda or his verbal requests for conferences. Plaintiff testified that he felt Sharpstone was isolating him from the mainstream of the department’s work, and further testified that Sharpstone consistently misspelled his name.
On discovery, Sharpstone testified that plaintiff’s work was unsatisfactory. First, Sharpstone felt that a speech prepared by plaintiff was unfocused, disorganized, and without any conclusion. Second, Sharp-stone testified that plaintiff failed to follow his directions in preparing a model for forecasting industry trends. Third, Sharpstone felt that plaintiff’s analysis of one of GE’s principal competitors was disorganized and not usable for action- purposes. Fourth, in Sharpstone’s view, plaintiff’s comments during meetings were unfocused and “off the wall.”
As a result of these perceived deficiencies in plaintiff’s performance, Sharpstone denied plaintiff incentive compensation for 1981. Moreover, Sharpstone decided that plaintiff’s employment should be terminated. Sharpstone further testified on discovery that he made this decision prior to plaintiff’s departure on an extended trip to India in November 1981 for personal reasons. However, plaintiff was not informed until January 6, 1982, shortly after he returned to the United States. Plaintiff testified that at that time Sharpstone stated that plaintiff would be replaced. Sharp-stone essentially confirmed that he expected at that time to replace plaintiff.
On January 18, 1982, plaintiff was formally notified of his termination. Although the separation date was set for the end of April 1982, GE extended the separation date to June 1982, and placed plaintiff on lack of work status in order to enable plaintiff to receive more benefits and additional severance pay.
At this same time, GE decided to reduce the ACBD staff and eliminated plaintiff's position. Accordingly, no one was ever hired to replace plaintiff. There is some dispute as to whether, prior to the decision to eliminate plaintiffs position, GE interviewed individuals to replace plaintiff. GE officials deposed that there were no interviews. Plaintiff, on the other hand, testified that Sharpstone interviewed a Mr. Jaffee in the late summer of 1981, which would be approximately one year before plaintiff’s termination. There is no indication in our record as to Mr. Jaffee’s race.
After exhausting his administrative remedies, plaintiff filed the present action on July 1, 1983. Following discovery, GE moved for summary judgment on February 26, 1986, which the district court granted on April 14, 1986. The district court first rejected GE’s argument that plaintiff’s section 1981 claim was deficient because East Indians are not entitled to protection under the statute.
The district court next turned to an analysis of plaintiff’s Title VII and section 1981 claims under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. The district court first held that although plaintiff’s evidence established the first three elements of a prima facie case under McDonnell Douglas; viz., (1) that plaintiff is a member of a protected class, (2) he was discharged, and (3) he was qualified for the position, plaintiff’s evidence did not establish the fourth element; i.e., that plaintiff was replaced by someone with his qualifications. The district court went on to hold that, assuming arguendo that plaintiff had established a prima facie case, GE had carried its burden of producing evidence that it terminated plaintiff for the legitimate, nondiscriminatory reason that his job performance was inadequate. However, the district court further held that plaintiff’s evidence could not support a finding that the reason proffered by GE was pretextual.
The district court dismissed plaintiff’s implied contract claim because, in its view, under Kentucky law, plaintiff’s employment was terminable at will. Further, the district court declined to exercise pendant jurisdiction over plaintiff’s claim under Kentucky’s Civil Rights Act, Ky.Rev.Stat. ch. 344 (1983).
On appeal plaintiff argues (1) that the district court erred in holding that he did not establish a prima facie case because he was not replaced; (2) that the district court erred in holding that the evidence could not support a finding that GE’s proffered reason for discharging him was pretextual; and (3) that the district court erred in holding that, under Kentucky law, he was an employee at will. GE argues, as a partial, alternative ground for affirming the district court, that plaintiff, as an East Indian, is not entitled to protection under section 1981.
II.
A. Prima Facie Case
In a disparate treatment case, such as the present action, the plaintiff's ultimate burden is to persuade the court that he has been the victim of intentional discrimination. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981); Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92 (6th Cir.1982) (per curiam). In the absence of direct evidence, “[pjroof of discriminatory motive ... can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). See also Rowe, 690 F.2d at 92. In McDonnell Douglas, the Supreme Court established a tripartite analysis for disparate treatment claims: the plaintiff must prove a prima facie case; the defendant must offer a legitimate, nondiscriminatory reason for its actions; and the plaintiff must establish that the defendant’s proffered explanation is a pretext to mask an illegal motive. 411 U.S. at 802-04, 93 S.Ct. at 1824-25.
The McDonnell Douglas Court stated that in a failure-to-hire case, the Title VII plaintiff may establish a prima facie case of racial discrimination “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiffs] qualifications.” Id. at 802, 93 S.Ct. at 1824. This test was recently reaffirmed in Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). A slightly different test has been applied in the discharge setting:
The three elements necessary to establish a prima facie case of discriminatory discharge were specifically enumerated by this court in Potter v. Goodwill Industries, 518 F.2d 864 (6th Cir.1975). A plaintiff must show “[1] that he is a member of a class entitled to the protection of the Civil Rights Act, [2] that he was discharged without valid cause, and [3] that the employer continued to solicit applications for the vacant position.” Id. at 865. Failure to prove any one of these elements by a preponderance of the evidences mandates a dismissal of the plaintiffs suit. Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir.), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983).
Case law subsequent to McDonnell Douglas has emphasized that the prima facie method “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094.
However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” B. Schlei and P. Grossman, Employment Discrimination Law 247 (Supp.1983-84).
The essence of a- disparate treatment case is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See also Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Rowe, 690 F.2d at 92. Accordingly, “individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiff’s protected group.” B. Schlei & P. Grossman, supra, at 1291 (2d ed. 1983).
A Title VII plaintiff supplies this indispensable comparative evidence at the prima facie stage through the last prong of the McDonnell Douglas test (as restated in Morvay) by identifying those individuals who are allegedly treated differently. See Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”). This explains the McDonnell Douglas Court’s articulation of this factor as requiring a showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis supplied).
Proof that a Title VII plaintiff belongs to a racial minority, that he was qualified for his position, and that he was fired, without more, simply fails to present evidence that the plaintiff “was rejected under circumstances which give rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253,101 S.Ct. at 1094. Cf. Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. (“An employer’s isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based.”). We do not mean to suggest that a Title VII plaintiff seeking to prove disparate treatment must always present evidence establishing the last prong of the McDonnell Douglas prima facie test. See Beaven v. Kentucky, 783 F.2d 672, 676 (6th Cir.1986). We do note, however, that in cases where courts have found that a Title VII plaintiff presented a prima facie case without proof that the employer continued to solicit applications, some additional evidence tended to establish the inference of discrimination. In particular, the plaintiffs were able to point to other individuals who were more favorably treated.
For example, in Beaven, supra, we held that although plaintiff failed to show that his eliminated position was filled, the district court erred in failing “to consider Beaven’s status as a merit employee and the possibility that defendants had offered Beaven’s next position to a white employee.” Id. at 675. Similar reasoning can be found in Peters v. Jefferson Chemical Co., 516 F.2d 447, 450 (5th Cir.1975). Although the court declined in Peters to decide whether the plaintiff had established a prima facie case, it indicated that other factors “counterbalanced the fact that [the defendant] did not try to fill” plaintiff's former position. Id. The court observed that the decision not to fill the position came after the plaintiff’s rejection and that two other positions for which the plaintiff was qualified were filled subsequent to her termination. Id. Other cases have held that a plaintiff who was not replaced can nonetheless establish a prima facie case by showing that the defendant engaged in a pattern of racial discrimination which supports an inference that any particular employment decision, during the period the discriminatory policy was in force, was made pursuant to that policy. See, e.g., Wooten v. New York Telephone Co., 485 F.Supp. 748, 758-60 (S.D.N.Y.1980) (quoting Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868.)
This case differs from Tye v. Board of Education of the Polaris Joint Vocational School District, 811 F.2d 315 (6th Cir.1987). Tye was a reduction in force case where the task previously performed by the Title VII plaintiff was still being performed by someone. Precisely, that case involved the elimination of one of two guidance counselors. The school continued to have a counselor for each of its students but had less individuals performing that task. Thus, the “jobs” were consolidated but the task remained the same; each individual counselor merely had to work harder to perform that same task. We held that for purposes of establishing a prima facie case, the remaining counselor replaced the fired counselor. In this case, however, the task itself — and eventually the entire department — was actually eliminated. Under these facts, no one replaced the plaintiff.
Nevertheless, plaintiff argues that the district court erred in requiring that he show that he was replaced because proof that GE undertook to fill the vacated position satisfies the requirements of a prima facie case. We do not disagree with plaintiff’s legal premise. Indeed, in Morvay and Potter, this court defined the last factor of the prima facie case as requiring that plaintiff show “that the employer continued to solicit applications for the vacant position.” Morvay, 708 F.2d at 233 (quoting Potter, 518 F.2d at 865).
Nonetheless, any error by the district court in requiring plaintiff to show that he was replaced, rather than considering whether GE continued to accept applications, is not a ground for reversal because there is no genuine issue of material fact as to whether GE accepted applications for plaintiff’s position after his discharge. See Herm v. Stafford, 663 F.2d 669, 684 (6th Cir.1981) (“An appellate court can find an alternative basis for concluding that a party is entitled to summary judgment and ignore any erroneous basis relied upon by the district court, provided it proceeds carefully so the opposing party is not denied an opportunity to respond to the new theory.”); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2716, at 658 (1983). In this case, plaintiff has not been denied an opportunity to respond as he has argued before this court that he presented evidence showing that GE continued to accept applications.
Plaintiff first relies on his deposition testimony that Sharpstone interviewed someone by the name of Jaffee for the position of Business Development Manager. Although plaintiff initially stated that the interview was conducted in the late summer of 1982, he then corrected himself that he meant 1981. Plaintiff further deposed (as did Sharpstone) that the decision to discharge him was made in November 1981. An interview conducted some three months before the decision was made to discharge plaintiff is simply irrelevant. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (plaintiff must show that “after his rejection, the position remained open and the employer continued to seek applicants____”) (emphasis supplied).
Plaintiff also relies on the deposition testimony of Palmer that GE interviewed persons for a position utilizing the slot vacated by plaintiff. However, Palmer’s uncontradicted testimony was that the position for which interviews were taken “bore no resemblance to the job that [plaintiff] had been doing for us.”
In this regard we also place some significance on the fact that there is no indication in the record that the individuals plaintiff asserts were interviewed were not members of a protected group. In the absence of such proof, plaintiff’s attempt to establish a prima facie case is particularly unpersuasive. See Daniels v. Board of Education, 805 F.2d 203, 210 (6th Cir.1986); Hudson v. IBM, 620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980). See also Valentino v. United States Postal Service, 674 F.2d 56, 63 (D.C.Cir.1982) (“To establish a prima facie case of discriminatory refusal to promote, a plaintiff need only ‘show that ... other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff’s request for promotion was denied.’ ”) (citation omitted; emphasis supplied); Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“To establish a prima facie case of racial discrimination, plaintiff must show that ... other employees with comparable qualifications and work records who were not members of a racial minority were not terminated.”) (emphasis supplied).
As earlier noted, plaintiff’s failure to show that GE attempted to fill his vacated position is not fatal if he can establish other evidence raising an inference of disparate treatment. See, e.g., Beaven, supra, 783 F.2d at 675-76. For example, a plaintiff can establish a prima facie case by presenting evidence that similarly situated nonminority employees were not fired. See id. at 676; Hughes, supra, 583 F.Supp. at 69 (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”).
Plaintiff’s evidence does not, however, permit such a finding. Plaintiff first observes that he was the only employee of ACBD terminated for unsatisfactory job performance and the only eligible employee denied incentive compensation for 1981. However, there is no evidence that any other ACBD employees had work records and evaluations similar to plaintiff’s. Absent proof that other employees were similarly situated, it is not possible to raise an inference of discrimination. See Reynolds v. Humko Products, 756 F.2d 469, 472 (6th Cir.1985) (plaintiff failed to establish prima facie case of discrimination because he did not establish that other employees who “had committed offenses of the same magnitude” were subjected to less discipline); Hughes, supra, 583 F.Supp. at 69 (“plaintiff must show that non-minority employees with comparable records were not terminated.”).
Plaintiff next points out that Bill Huff, the white, number three man in the department, was invited to meetings with Sharp-stone, but plaintiff was purposefully excluded. While this evidence might raise an inference of discrimination regarding plaintiffs treatment while employed, this is not the wrong for which plaintiff seeks recovery; viz., discriminatory discharge and denial of incentive compensation. The evidence regarding Huff does not have a close enough nexus to the discriminatory acts alleged as a basis for recovery to alone establish an inference of disparate treatment.
Plaintiff next notes that a white employee named Jim Lehman, who had performance problems, was not terminated; instead, another job at a lower level was found for him. The evidence regarding Lehman is found in Mr. Palmer’s deposition. His uncontradicted testimony was that Lehman was treated differently in deference to his long service (twenty plus years) with the company. Thus, Lehman was not similarly situated to plaintiff, who had worked for GE for only nineteen months when Sharpstone decided to terminate his employment in November 1981. Accordingly, this evidence is insufficient to raise an inference of discrimination.
Finally, we note that when asked what facts plaintiff had to support his allegation of discrimination, plaintiff generally set forth the following: (1) that he could not accept poor performance as the reason for his termination; (2) that Sharpstone refused to shake his hand; (3) that Sharp-stone failed to answer plaintiff’s memos; (4) that Sharpstone isolated plaintiff from the mainstream of the division; (5) that Sharpstone told him to leave their shared secretary alone when plaintiff gave her some work; and (6) that Sharpstone did not spell plaintiff’s name correctly. When plaintiff was asked whether he knew of anybody else that Sharpstone treated differently, plaintiff replied, “I did not spend any time finding out that____” Considered in the light most favorable to plaintiff, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979), we do not believe this evidence is sufficient to raise an inference of discrimination.
In affirming the district court’s dismissal of plaintiff’s Title VII claim, we are not unaware that cases such as this, “involving questions of motive or intent are normally not suited to disposition on summary judgment.” Locke v. Commercial Union Insurance Co., 676 F.2d 205, 207 (6th Cir.1982) (per curiam) (Jones, J., dissenting) (citing First National Bank v. Cities Service Co., 391 U.S. 253, 284-85, 88 S.Ct. 1575, 1590, 20 L.Ed.2d 569 (1968)); Smith v. Hudson, supra, 600 F.2d at 66. Nonetheless, “[wjhile the factual disputes involved in most Title VII suits preclude their resolution on summary judgment, summary judgment is available in an appropriate Title VII case.” McKenzie v. Sawyer, 684 F.2d 62, 67 (D.C.Cir.1982) (citing Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 729 (5th Cir.1976)). For the foregoing reasons, we conclude that plaintiff’s failure to establish evidence sufficient to raise an inference of disparate treatment entitled GE to summary judgment on plaintiff’s Title VII and section 1981 claims. Locke v. Commercial Union Insurance Co., 676 F.2d 205 (6th Cir.1982) (per curiam) (affirming district court’s grant of summary judgment for defendant in light of plaintiff’s inability to establish prima facie case in age discrimination action). In light of this disposition, we need not discuss the district court’s holdings on pretext and the availability of section 1981 to plaintiff.
B. Implied Contract
The final issue to be decided is whether the district court erred in dismissing plaintiff’s breach of implied contract claim. In his complaint, plaintiff alleged basically two implied contractual terms of employment. First, plaintiff alleged that GE failed to follow the terms of its Organization and Policy Guide, which provides that in cases where an employee’s performance is less than satisfactory, the company will provide the employee with a performance appraisal, provide him an opportunity to correct any alleged deficiencies, and make an effort to provide him with alternative employment opportunities within the company. Second, plaintiff alleged that GE discharged him without just and sufficient cause.
As to his alleged first term of employment, the district court rejected “plaintiff's unilateral decision to construe his perceived rights under defendant’s policies as contractual.” As to his alleged second term of employment, the court held that “[sjince plaintiff’s discharge was not ‘motivated by the desire to punish [him] for seeking benefits to which he is entitled by law’, Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 734 (Ky.1983), he is terminable at will.” Op. at 35.
Firestone, however, is not in point. Therein, the issue was “does a complaint seeking damages for wrongful discharge because an employee was terminated for pursuing a claim ... for workers’ compensation state a cause of action?” Id. at 731. The Kentucky Supreme Court held that such a claim is actionable. However, the court did not address the issue before us. In Firestone, as well as the other cases cited by the district court, it was a given fact that the employment relationship was “at will.” In the present case, the issue is whether Kentucky recognizes a cause of action for breach of an implied contract to discharge only for cause.
In support of his position, plaintiff cites Shah v. American Synthetic Rubber Corp., 655 S.W.2d 489 (Ky.1983), wherein the plaintiff alleged that the defendant fired him without cause in violation of a contract that he would be fired only for cause in accordance with policies and procedures established by the defendant. In reversing the trial court’s grant of summary judgment in favor of the defendant, the Kentucky Supreme Court stated:
Shah seeks enforcement of a covenant beyond one for permanent employment or employment for an indefinite term. He seeks relief for breach of ASRC’s covenant that if he survived the 90-day probationary period he could be fired only for cause — work-connected cause— in accordance with the policies and procedures of the company. Here the parties fixed the term of Shah’s employment— employment until he was fired for cause in accordance with the policies and procedures of the company. Enforceability of this covenant in a contract between an employer and an individual employee has not heretofore been decided in this jurisdiction.
Protection of employees against discharge without cause is routinely provided under collective bargaining agreements as well as under civil service statutes and ordinances. See cases and statutes collected in 93 Harv.L.Rev. 1816, 1816, n. 1 (1980). It is there estimated that one-third of the entire national work force is accorded such protection. Employers and individual employees should be equally free to contract against discharge without cause, as Shah and ASRC are presumed for purposes of ASRC’s motion for summary judgment to have done. We join a number of other jurisdictions which hold that parties may enter into a contract of employment terminable only pursuant to its express terms — as “for cause” — by clearly stating their intention to do so, even though no other considerations than services to be performed or promised, is expected by the employer, or performed or promised by the employee.
Id. at 491-92 (citations omitted; emphasis supplied). Therefore, it is clear that the district court erred in its implicit holding that, under Kentucky law, all employees are terminable at will unless the discharge was motivated by the desire to punish the employee for seeking benefits to which he is entitled by law.
As stated, the district court also believed that plaintiffs proof established only a unilateral belief that GE’s policies were contractual. However, plaintiff presented copies of the policies and testified that they were shown to him during the preemployment negotiations and during his first week of employment. In Shah, the Kentucky Supreme Court stated:
Whether Shah’s employment contract contained a “termination for cause only” covenant or whether he was fired, in accordance with company policies and procedures for one or more of the many causes alleged by ASRC cannot be resolved against him on ASRC’s Motion for a Summary Judgment. Murphy v. Taxicabs of Louisville, Inc., Ky., 330 S.W.2d 395 (1959). These issues must be resolved on a motion for a directed verdict or upon a jury verdict after a plenary trial on the merits and after application of the good faith standard established in Crest Coal Company, Inc. v. Bailey, Ky., 602 S.W.2d 425 (1980).
655 S.W.2d at 492 (emphasis supplied). Under this authority, the district court erred in granting summary judgment on plaintiff’s implied contract claim.
III.
For the reasons set forth above, the district court’s grant of summary judgment on, and dismissal of, plaintiffs Title VII and section 1981 claims is AFFIRMED. The district court’s grant of summary judgment in favor of GE on plaintiffs state law breach of contract claim is REVERSED, and the case is REMANDED for further proceedings not inconsistent with this opinion. We express no opinion as to the merits of plaintiff’s breach of contract claim.
. The order and allocation of proof in a section 1981 case are the same as in a Title VII action. See Daniels v. Board of Education, 805 F.2d 203, 207 (6th Cir.1986).
. Establishment of this factor is also significant in that it eliminates one of the most likely legitimate causes for the employer's adverse action — the absence of a job opening. See Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. B. Schlei & P. Grossman, supra, at 1299 (2d ed. 1983).
. See supra note 1.
. The court also held that the policies do not apply to plaintiffs position, citing Palmer’s deposition. As to this sub-issue, a disputed issue of material fact exists as Ms. Moran, a GE employee, deposed that the policies were applicable to ACBD employees.
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_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.
The MAYTAG COMPANY, a corporation, Plaintiff-Appellant, v. The MURRAY CORPORATION OF AMERICA, a corporation, Defendant-Appellee.
No. 14728.
United States Court of Appeals Sixth Circuit.
June 5, 1963.
Patrick H. Hume, Chicago, 111. (Patrick H. Hume, Clyde F. Willian, Byron, Hume, Groen & Clement, Chicago, 111., on the brief), for appellant.
Arthur W. Dickey, Detroit, Mich. (Arthur W. Dickey, Robert L. Boynton, Harness, Dickey & Pierce, Detroit, Mich., on the brief), for appellee.
Before CECIL, Chief Judge, WEICK, Circuit Judge, and TAYLOR, District Judge.
CECIL, Chief Judge.
The plaintiff-appellant, The Maytag Company, brought this action in the United States District Court for the Eastern District of Michigan, Southern Division, against the defendant-appellee, The Murray Corporation of America, for infringement of a patent. The parties will be referred to as plaintiff and defendant, respectively.
The patent in question, No. 2,717,456, was issued to Thomas R. Smith .and assigned by him to the plaintiff. The defendant denied infringement and charged that the patent was invalid. The District Judge found the patent to be valid, except for claim 15 which he held to be too broad and an over statement of the invention. He found further that there was no infringement and the complaint was dismissed. The plaintiff appeals from the findings of the court that claim 15 was invalid and that there was no infringement. The defendant urges this Court to sustain the judgment of the District Court either on the ground of invalidity or non-infringement. The trial judge found that claims 2 and 3 of the patent were not infringed by virtue of being limited to the specific type of heating means shown in the patent. The plaintiff did not appeal from the findings of the court on these two claims.
The defendant did not file a cross-appeal and the plaintiff claims that the question of invalidity can not now be raised on this appeal. We hold that this question is properly before us. Bede v. Baker & English, Inc., 274 F.2d 833, 835, C.A. 6; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239, 55 S.Ct. 746, 79 L.Ed. 1414; Merco Nordstrom Valve Co. v. W. M. Acker Organization, Inc., 131 F.2d 277, C.A. 6; Guiberson Corp. v. Equipment Engineers, Inc., 252 F.2d 431, 432, C.A. 5; Graham v. Cockshutt Farm Equipment, Inc., 256 F.2d 358, 359, C.A. 5.
The paramount question in this case, as stated by counsel for plaintiff, is infringement. While an affirmance of the District Court on the ground of non-infringement would dispose of the appeal, the Supreme Court has said that due to the greater public importance of the validity of a patent it is the better practice to inquire fully into that issue. Sinclair & Carroll Co., Inc. v. Interchemical Corporation, 325 U.S. 327, 330, 65 S.Ct. 1143, 89 L.Ed. 1644. We will consider first the question of validity.
The subject of the plaintiff’s patent and the accused devices of the defendant all involve clothes driers of the type commonly used in the home. The defendant has made, sold and used three models of its drier, which are identified as CDF, CDH and CDK. The parties agree that all three models are essentially the same in respect to the particulars material to this action. They will be referred to as the “accused device.”
The machines of both parties operate as “closed” systems and we will limit our discussion to that type of drier, although there is a type that operates as an “open” system. Briefly stated, the essential feature of the closed system is that the atmosphere within the drier is enclosed from the outside atmosphere and heated to evaporate moisture which is removed by a condenser disposed internally of the system. The open system draws air from outside the machine itself, which is sometimes referred to as ambient atmosphere. This outside air is heated, mingled with the clothing to be dried and then expelled to the outside of the washer.
The plaintiff’s patent is known as a combination patent and is admittedly composed of old elements. The crucial elements of this combination are: 1. A substantially imperforate casing defining a chamber; 2. A tumbler or drum to agitate the clothing; 3. Walls of such casing which openly face the tumbler or drum; 4. Means for heating the chamber; 5. A water film condenser.
The requisites for the validity of a patent are novelty, utility and invention. Aluminum Company of America v. Sperry Products, Inc., 285 F.2d 911, 917, C.A. 6, cert. denied, 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87. “The combination of old parts or elements, in order to constitute a patentable invention, must perform or produce a new and different function or operation than that theretofore performed or produced by them; it is not sufficient that the combination be superior to what went before in producing a more convenient and more economical mechanism.” Bede v. Baker & English, Inc., supra, 274 F.2d at 839, citing General Motors Corp. v. Estate Stove Co., 203 F.2d 912, 917, C.A. 6; Sec. 103, Title 35, U.S.C.
The defendant claims that the patent in suit is lacking in invention by reason of prior art. The test of invention where old elements are used in the alleged invention is whether those elements are used in a manner different from the previously known use in such a way that the alleged invention would not have been obvious to one skilled in the art. Allied Wheel Products v. Rude, 206 F.2d 752, 760, C.A. 6; Aluminum Company of America v. Sperry Products, Inc., supra; Ohmer Fare Register Co. v. Ohmer, 238 F. 182, 186-187, C.A. 6; Wintermute v. Hermetic Seal Corporation, 279 F.2d 60, 62, C.A. 3. Invention under this test is a question of fact. Sterling Aluminum Products, Inc. v. Bohn Aluminum & Brass Corp., 298 F.2d 538, 539-540, C.A. 6; Wickman v. Vinco Corporation, 288 F.2d 310, 312, C.A. 6; Cold Metal Products Company v. E. W. Bliss Company, 285 F.2d 244, 248, C.A. 6, cert. denied, 366 U.S. 911, 81 S.Ct. 1085, 6 L.Ed.2d 235; Aluminum Company of America v. Sperry Products, Inc., supra; Stubnitz-Greene Spring Corp. v. Fort Pitt Bedding Co., 110 F.2d 192, 196, C.A. 6; Ohmer Fare Register Co. v. Ohmer, supra, 238 F. at 187; Schafer v. Watson, 109 U.S.App.D.C. 360, 288 F.2d 144, 145, C.A.D.C.; Rota-Carb Corporation v. Frye Manufacturing Company, 313 F.2d 443, 444, C.A. 8.
The patent in suit, as issued, sets forth seven objects of the invention as claimed by Mr. Thomas R. Smith, its inventor. Summarizing these objects, briefly, it may be stated that the inventor’s contribution to the prior art of “closed system” laundry driers is: (1) The condensation of moisture and the elimination of lint by the utilization of a water film condenser while relying completely on vapor pressure to circulate the air by “random flow,” and (2) thereby, the elimination of the need for baffles, protective shields and channeling ducts which increased the cost of the drier and accumulated lint under unsanitary and dangerous conditions.
Consideration of the status of the prior art of closed laundry driers and its relation to the patent in suit raises a close question of fact as to whether Mr. Smith’s device achieved invention. The trial judge carefully considered all of the evidence with reference to prior art, particularly the Bradley patent, the claims of the parties and the law applicable to the facts. His opinion is reported at 193 F.Supp. 535. The trial judge found that the specification of the patent in suit disclosed the invention contended for by plaintiff. He further found “In plaintiff’s patent a new and surprisingly simple method of operation is disclosed for the first time. Although all the structural elements are old, in the peculiar combination disclosed by the patent they cooperate in a new and different manner, bringing about a surprising result which the prior art inventors were unable to conceive or anticipate.” Id. 193 F.Supp. at 541.
The above quoted finding is a factual finding and describes invention. We cannot say that this finding of fact is clearly erroneous. Findings of fact of the trial court in a patent case cannot be set aside unless clearly erroneous. Rule 52(a), F.R.C.P.; Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 336 U.S. 271, 274, 69 S.Ct. 535, 93 L.Ed. 672; Aluminum Company of America v. Sperry Products, Inc., supra, 285 F.2d at 917; Sterling Aluminum Products, Inc. v. Bohn Aluminum & Brass Corp., supra, 298 F.2d at 539; General Electric Company v. Sciaky Bros., Inc., 304 F.2d 724, 731, C.A. 6; Jiffy Enterprises, Inc. v. Sears, Roebuck & Co., 306 F.2d 240, 243, C.A. 3, cert. denied, 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230, citing R. M. Palmer Company v. Luden’s Inc., 236 F.2d 496, 498, C.A. 3; Hoge Warren Zimmerman Co. v. Nourse & Co., 293 F.2d 779, 780, C.A. 6; Thermo King Corporation v. White’s Trucking Service, Inc., 292 F.2d 668, 678, C.A. 5; Welsh Co. of California v. Strolee of California, Inc., 290 F.2d 509, 511, C.A. 9.
We sustain the finding of the trial court that the patent in suit is valid as to claims 7, 8, 9, 12, 16 and 17.
The terms of claim 15 of the plaintiff’s patent (plaintiff’s Ex. 1A), which the District Court held to be invalid, are obviously so broad that they cannot be construed so as to be confined to the invention disclosed by plaintiff’s patent (No. 2,717,456). As the trial judge said, this claim would embrace an “open” as well as a “closed” system drier. For the reason that claim 15 overstates the invention and claims a monopoly greater than that to which the inventor is entitled, we conclude that the claim is invalid.
Plaintiff alleges that defendant has infringed plaintiff’s patent by manufacturing, selling and using clothes driers embodying his patented invention. Specifically, plaintiff asserts that defendant’s commercial clothes drier models CDF, CDH and CDK infringe upon claims 7, 8, 9, 12, 15, 16 and 17. (Claim 15 alleged to have been infringed has been disposed of previously in this opinion.)
The District Court determined that the accused device did not infringe. On this appeal the plaintiff contends that the defendant’s machine comes within the plain scope of the claims alleged, and, therefore, that infringement is established. The plaintiff further asserts that the accused device and the patented machine are, for all material purposes, structurally and functionally equivalent. It claims that infringement cannot be avoided by adopting a subcomponent (here a blower heater bypass tube) which is not critical to the patented invention.
We turn then to the general principles of patent infringement law applicable to the facts of this case. The Supreme Court has defined an infringement as “a copy of the thing described in the specification of the patentee, either without variation, or with such variations as are consistent with its being in substance the same thing. If the invention of the patentee be a machine, it will be infringed by a machine which incorporates in its structure and operation the substance of the invention; that is, by an arrangement of mechanism which performs the same service or produces the same effect in the same way, or substantially the same way. * * * That two machines produce the same effect will not justify the assertion that they are substantially the same, or that the devices used are, therefore, mere equivalents for those of the other.” Westinghouse v. Boyden Power Brake Company, 170 U.S. 537, 569, 18 S.Ct. 707, 723, 42 L.Ed. 1136. Cited in Aluminum Company of America v. Sperry Products, Inc., supra, 285 F.2d at 923.
The statutory enactment on infringement is Sec. 271(a), Title 35, U.S.C.: “Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.” This infringement provision was first enacted in the 1952 patent statute. It left intact the entire body of case law on direct infringement. Aro Manufacturing Co., Inc. v. Convertible Top Replacement Co., Inc., 365 U.S. 336, 342, 81 S.Ct. 599, 5 L.Ed.2d 592, rehearing denied, 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed. 2d 201.
The question of infringement is generally regarded as a question of fact. Hamilton Mfg. Corp. v. Toledo Guild Products, 210 F.2d 237, 238, C.A.6; Aluminum Co. of America v. Thompson Products, Inc., 122 F.2d 796, 799, C.A.6. Accordingly, upon review of the trial court’s determination of no infringement, the clearly erroneous rule, Rule 52 (a), F.R.C.P., is applicable. See also Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 609-610, 70 S.Ct. 854, 94 L.Ed. 1097.
Proceeding then to determine whether the lower court was clearly erroneous, we first consider the claims alleged to be infringed. “In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it.” Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855, 94 L.Ed. 1097. See Parmelee Pharmaceutical Company v. Zink, 285 F.2d 465, 469, C.A.8.
In determining whether the accused device reads within the claims, we look at claim 9 which is fairly representative of all the claims in issue. Claim 9 provides:
“A drier for damp clothing, comprising a substantially imperforate casing defining a chamber and having an access opening therein, a closure for such opening, a tumbler in said chamber for agitating the clothing, said casing comprising walls openly facing said tumbler, means for heating said chamber to evaporate the moisture in the clothing, means for conducting cooling water in a relative thin and wide film over the interior of a portion of said walls to condense the evaporated vapor, and means for directing the cooling water and condensate to drain.”
Upon a reading of these claims, it is apparent that the Maytag drier consists of the following essential elements or component parts previously enumerated: (1) A substantially imperforate casing defining a chamber. (2) A tumbler or drum to agitate the clothing. (3) Walls of such casing which openly face the tumbler or drum. (4) Means for heating the chamber. (5) A water film condenser.
In both the plaintiff’s and defendant’s machines, the drying operation is accomplished by the recirculation of heated air through the perforated tumbler and wet fabrics, past a water film condenser that runs from a side position of the stationary casing in a quiescent wide film to a drain at the bottom. This water film is in an open confronting relation to the perforated tumbler. In the plaintiff’s machine this water film is used for the elimination of lint. The plaintiff’s patented machine uses no mechanical means for the circulation of air. Rather, circulation is accomplished by the vapor pressure difference — the hot, moisture laden air naturally moving towards a cooler surface. No ducts or baffles are employed to channel the air. No forced air circulation is used. This operation is characterized as “random flow.”
The defendant’s machine provides a fan or a pump for recirculating the air through a bypass at the top of the casing, in which the heater is installed. This fan returns the air into the chamber after it has been reheated in the bypass tube. By this forced circulation of air through the heater bypass direction is imparted to the flow of air within the chamber. Defendant characterized this method as “sequential flow.” Up to eighty percent of the lint is collected on a lint screen at the opening of this heater bypass. The remaining twenty percent of the lint moves with the moisture being condensed at the water film and is discharged out the drain. The water film condenser in the accused device is similarly situated and operates in the same manner as the plaintiff’s water film.
Considering the essential elements enumerated in the claims, therefore, the defendant’s machine has a tumbler in open confronting relationship to a water film condenser, elements 2, 3 and 5. The elements for heating the chamber (element 4) are in a bypass tube or channel separate from the drying operation. Claim 9, previously reproduced as a representative claim, says “means for heating said chamber to evaporate the moisture in the clothing.” Therefore, the location of the heater is not relevant. Element 4 is present in the accused device, since the drying function is being performed by some means for heating.
Issue is joined, however, on element 1, “substantially imperforate casing defining a chamber.” Defendant contends that since there is an opening in the chamber wall of its machine leading to and from the heater bypass tube, the accused machine cannot be said to have a “substantially imperforate casing.”
Contrary to this interpretation the plaintiff contends that the term “substantially imperforate” means imperforate to the ambient or outside atmosphere and does not encompass holes or openings which allow air to be recirculated through chambers and ducts within a closed system.
The crux of the infringement controversy is the definition of the language “substantially imperforate casing.” In the construction of this term, Judge Freeman found “that defendant’s machine does not utilize the ‘substantially imperforate casing’ (or walls thereof) recited by claims * * * 7, 8, 9, 12, 16 and 17 (element 1, supra).” Maytag Company v. Murray Corporation of America, D.C., 193 F.Supp. 535, 544.
In the laundry drier field the art is crowded. This is not the case of a pioneer patent. This is a combination patent consisting of a variety of old elements. The patentee was a narrow improver. Accordingly, the patentee cannot prevent others from making improvements on the prior art unless they use substantially the very novelty which is the basis of his patent. National Latex Products Company v. Sun Rubber Company, 274 F.2d 224, C.A.6, cert. denied, 362 U.S. 989, 80 S.Ct. 1078, 4 L.Ed.2d 1022; Remington Rand, Inc. v. Meilink Steel Safe Co., 140 F.2d 519, 521, C.A.6; Industrial Instrument Corporation v. Foxboro Company, 307 F.2d 783, 785, C.A.5, rehearing denied, 686. 310 F.2d
“The claim of a patent must be read in the light of the invention disclosed and cannot be given a construction broader than the teachings of the patent as shown by the drawings and specifications.” Blanc v. Curtis, 119 F.2d 395, 397, C.A.6. See Aluminum Co. of America v. Thompson Products, Inc., supra, 122 F.2d at 800.
Considering the invention disclosed and the state of the prior laundry drier art, this disputed term must be given a strict construction. Fife Manufacturing Company v. Stanford Engineering Co., 299 F.2d 223, 226, C.A.7. “Substantially imperforate casing” would exclude any perforations, holes or openings which are designed or utilized to direct an air flow outside the drying chamber.
We hold that the trial court’s finding that the term “substantially imperforate” meant devoid of any openings in the drying chamber was correct. The openings at the entrance to the blower-heater bypass tube, where the lint screen was located, and at the exit, where the heated air was returned to the chamber, “perforated” the main casing of the accused device. Accordingly, the accused device clearly does not fall within the asserted claims.
Having determined that the “accused device” does not read upon the claims of the patent, the plaintiff can prevail on the infringement issue only if the doctrine of equivalents is applicable. Accordingly, we proceed to the consideration of equivalency.
The Supreme Court has recently reaffirmed the continuing validity of the Doctrine of Equivalents. Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097. At p. 607, 70 S.Ct. at p. 855 the Court said “courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for — indeed encourage —the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system.” See Royal Typewriter Co. v. Remington Rand, Inc., 168 F.2d 691, 692, C.A.2, cert. denied, 335 U.S. 825, 69 S.Ct. 50, 93 L.Ed. 379.
The essence of the doctrine of equivalents is that one may not practice a fraud on a patent “ * * * if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape,” Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., supra, 339 U.S. at 608, 70 S.Ct. at 856. “What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was.” Id. 339 U.S. at 609, 70 S.Ct. at 856.
Speaking specifically about infringement of a combination patent, the Sixth Circuit has stated in Aluminum Company of America v. Sperry Products, Inc., supra, 285 F,2d at 923: “[infringement of a combination patent occurs only through a combination comprising every one of its elements or a mechanical equivalent.” Further, an improver could not appropriate the basic patent of another, for the improver without a license is an infringer.
Id. 285 F.2d at 924, the court said: “If the infringing device performs the same function as the patented device, it is immaterial that it also performs some other function. It is still nonetheless an equivalent of the patented device, and an appropriation of the patented invention.”
The essence of the invention disclosed by the plaintiff’s patent was the “random flow” of air, initiated by the vapor pressure difference. Plaintiff asserts that the utilization of fans and duct work is non-essential since the drying process is actually completed by the flow of air caused by the vapor pressure differential.
The trial court determined that in the accused device the drying process was accomplished by reason of a directional or “sequential” flow of air. The court found that the defendant did not rely on the vapor pressure difference to accomplish this process.
The question of equivalency then is this: Although direction is imparted to the air flow by the blower in the bypass tube, does the defendant still rely principally upon the vapor pressure differential to accomplish the drying process in his machine?
The range of equivalents depends upon and varies with the degree of invention. Continental Paper Bag Company v. Eastern Paper Bag Company, 210 U.S. 405, 415, 28 S.Ct. 748, 52 L.Ed. 1122. Here where the patent is narrow and the art is crowded the range of equivalents is similarly narrow. Parmelee Pharmaceutical Company v. Zink, supra, 285 F.2d at 472; Fife Manufacturing Company v. Stanford Engineering Co., supra, 299 F.2d at 226. In considering the range of equivalents we consider the prior art as one of the determinative factors. It is apparent to one-skilled in the laundry drier art that two branches have evolved.
The first type is that of the forced air circulation type. Fans or blowers are-situated outside the cylindrical fixed casing in which the clothes tumbler rotates. The necessary accompanying equipment of housing and duct work acts to channel' the air into, through, and out of the main casing in which the clothes tumbler is operating. This type of machine is best represented by the prior Constantine (No. 2,590,295) and Pugh (Nos. 2,451,692 and 2,453,859) patents. The accused device follows this branch of the prior art.
The second category of the prior art eliminates forced air circulation. This-eliminates the accompanying equipment of blower, housing and duct work which is exterior to the cylindrical casing in which the clothes tumbler rotates. All' the necessary elements for the drying process are contained within this imperforate chamber, namely, the clothes tumbler, the heating elements, and the condensing elements. This type of machine is represented by the Erickson et al. (No. 2,701,421), Graham (No. 2,686,372), and Hammel et al. (No. 2,644,245) patents. The machine of the patent in suit is of this type.
We conclude that the patent in-suit and the accused device are not equivalent. The two machines operate from entirely different premises. The finding-that defendant’s machine does not employ the “random flow” of air which constitutes the essence of the invention is correct. The judgment of the District. Court is in all respects affirmed.
. Claim 7: “* * * a substantially imperforate container * * * defining a drying chamber. * * * ”
Claim 8: “ * * * a substantially imperforate casing * * * defining a chamber. * * * ”
Claim 9: “ * * * a substantially imperforate casing defining a chamber.
Claim 12: “ * * * a substantially imperforate casing defining a drying chamber. * * * ”
Claims 16 and 17: “ * * * said casing including an imperforate wall. $ * * 3»
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_district
|
I
|
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".
FINLEY et al. v. COE, Com’r of Patents.
No. 6292.
United States Court of Appeals for the District of Columbia.
Argued March 4, 1935.
Decided April 8, 1935.
Joseph W. Milburn, of Washington, D. C., for appellants.
T. A. Hostetler, Solicitor of Patent Office, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
ROBB, Associate Justice.
Appeal from a decree in the Supreme Court of the District dismissing appellants’ bill, filed under the provisions of section 4915, R. S., as amended (35 USCA § 63), seeking to authorize the Commissioner of Patents to issue a shingle design patent to appellant Paraffine Companies, the assignee of the alleged inventor, appellant Finley.
The shingle is rectangular in shape, the lower edge forming a reverse curve, with the concave portion of the curve in the center and the convex portions at the ends. The side ends of the shingle are formed by straight parallel lines. A tab is formed at one lower corner of the shingle, and a notch is formed at the opposite lower corner. When these shingles are laid, with the tab of one shingle interlocking with the notch of an adjacent shingle, the adjacent convex curve portions will meet and produce a continuous convex curve.
We here reproduce appellants’ drawing of the shingle:
The examiner rejected the claim as substantially met by appellant Finley’s mechanical patent No. 1,604,745. We here reproduce fig. 4 of that patent:
The Board of Appeals sustained the primary examiner; thereupon this suit was instituted.
The functional parts of the reference shingle contribute nothing to the design. Martin Copeland Co. v. Pilot Electric Co. (C. C. A.) 32 F.(2d) 235; Ashley v. Weeks-Numan Co., 220 F. 899, 136 C. C. A. 465; In re Mygatt, 39 App. D. C. 432.
We here reproduce from appellants’ brief in the Patent Office a drawing showing the appearance of the shingles of the reference when laid:
Also a drawing illustrating the shingle of the issue when laid:
The authority for the issuance of a design patent is found in section 4929, R. S., as amended (35 USCA § 73), which provides that “any person who has invented any new, original, and ornamental design for an article of manufacture,” not known or used by others in this country before his invention thereof, etc., may obtain a patent therefor. (Italics ours.) Design patents, therefore, require as high a degree of the inventive or original faculty as mechanical patents. Knapp v. Will & Baumer Co. (C. C. A.) 273 F. 380; Smith v. Whitman Saddle Company, 148 U. S. 674, 679, 13 S. Ct. 768, 37 L. Ed. 606.
Appellants contend that to modify the lower edge of the shingle shown in the Finley mechanical patent by using a reverse curve instead of a simple curve involves invention. To meet this contention the Patent Office tribunals cited the patent to Shernrf, No. 1,701,640, which discloses a reverse curve on the lower edge of the same type of shingle. We agree with the Patent Office and the court below that the use in the shingle of the application of the reverse curve disclosed in the Sherriff patent instead of the single curve disclosed in the Finley mechanical patent was not the exercise of originality and, therefore, did not involve invention. In Re Sherman, 35 App. D. C. 100, involving an application for a design patent, we said: “While in a close case utility may be given some consideration, the real question is whether there is such originality shown as to call for the exercise of the inventive faculty.”
The decree is affirmed.
Affirmed.
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
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
TEMPCO ELECTRIC HEATER CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
Nos. 92-3050 and 92-3249.
United States Court of Appeals, Seventh Circuit.
Argued March 30, 1993.
Decided July 19, 1993.
Robert P. Casey, Charles E. Murphy, Richard L. Samson (argued), David B. Montgomery, Murphy, Smith & Polk, Chicago, IL, for petitioner.
Elizabeth Kinney, Denise R. Jackson, N.L.R.B., Chicago, IL, Aileen A. Armstrong, Nancy J. Gottfried (argued), Appellate Court, Enforcement Litigation, Paul J. Spielberg, Washington, DC, for respondent.
Before CUMMINGS and RIPPLE, Circuit Judges, and TIMBERS, Senior Circuit Judge.
The Honorable William H. Timbers, Senior Circuit Judge of the United States Court of Appeals for the Second Circuit, is sitting by designation.
CUMMINGS, Circuit Judge.
Tempco Electric Heater Corp. seeks review of an order of the National Labor Relations Board (“Board”) requiring it to bargain with Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, as the collective bargaining representative of Tempco’s full-time and regular part-time production and maintenance employees at Tempco’s facility in Wood Dale, Illinois. In turn, the Board has applied for enforcement of its order.
Tempco manufactures heating elements for the package and plastic processing industry. In March 1991, the Union filed a petition with the Board seeking to represent Temp-co’s production and maintenance employees. An election with secret ballots was held on May 17, 1991; eighty-one workers voted for the Union and sixty-five against. Although seven ballots were challenged, that would have been an insufficient number to alter the outcome of the election even if the challenges were valid. Nevertheless, Tempco raised several objections to the way the election was conducted. The company complained that workers were intimidated, coerced and misled into voting for union representation.
The company took its objections to an NLRB hearing officer who sided with the Union after listening to testimony for four days. The hearing officer recommended to the Board that a Certificate of Representative issue, meaning that the Union would be approved to represent the employees in collective bargaining. On February 26, 1992, a three-member panel of the Board adopted the hearing officer’s findings and certified the Union, but Tempco still refused to bargain with it. This led the Board’s general counsel in April 1992 to issue a complaint against Tempco for engaging in unfair labor practices. The ease went before the Board again, which found that Tempco violated 29 U.S.C. §§ 158(a)(5) and (1) by refusing to bargain with the Union and by withholding critical information from the Union. The Board castigated Tempco because all of the evidence it claimed infected the election had been or should have been raised in the earlier proceedings before the hearing officer and the Board.
Tempco remains persistent. The company appealed the Board’s cease and desist order to this Court, and we conclude its claims that the election was unfair are no more compelling than did the NLRB hearing officer or the Board on two occasions. We have jurisdiction to entertain direct appeals of Board decisions under 29 U.S.C. §§ 160(e) and (f).
Tempco argues that at a mass meeting (eighty-six workers attended) held on the eve of the election at a local VFW hall, an agent of the Union threatened the job of one employee who challenged the Union’s promises about better wages and benefits. The company also claims that the Union conducted an improper poll to gauge its support among the workers present. The meeting was conducted by the Union’s assistant business manager and recording secretary, Roy Cortes. A number of other Union officials were there as well including the president of the local. Cortes spoke at some length about the Union’s representation of other companies including Zenith Electronics Corp. and A.R.I. Okasaki, a competitor of Tempco’s. Cortes promised that workers’ wages would go “higher and higher.” At one point Cortes’ assertions of better wages and benefits were challenged by an employee named Orlando Monte, who had been hired only the month before. Monte said that his father had worked at Zenith and that Cortes’ rosy picture of life in a Union was misleading. Monte also said that the Union representatives were liars and that he would rather leave the company than pay union dues. A number of employees starting yelling at Monte; they questioned his authority to speak since he had only been at Tempco for a few weeks. Cortes picked up the theme and claimed that Monte had been sent as an infiltrator by Fermín Adames, Tempco’s president, to disrupt the meeting. Then, according to the testimony of Monte and others before the hearing officer, Cortes said to Monte something like, “Yourself, the one next to you, and those others who are nonunion supporters, I will promise you that from a week to a month’s time you will not be employed; you will not be working” (Monte’s version); or “Once he performs his dirty work, he is going to go somewhere else and perform the same dirty work for another employer” (Cortes’ version); or “His job was finished, he wasn’t going to work anymore for Tempco” (another worker’s version) (plaintiffs app. at 18).
The question we must answer is whether the union representative’s statements to Monte were a threat which poisoned the election and coerced other workers into voting for the Union. Since the results of a Board-supervised and certified election are presumptively valid, NLRB v. Browning-Ferris Ind. of Louisville, Inc., 803 F.2d 345, 347 (7th Cir.1986), and the objecting party bears the burden of proof, NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455, Tempco must show that Cortes’ conduct “so influenced potential voters that free choice was impossible.” NLRB v. Chicago Marine Containers, Inc., 745 F.2d 493, 500 (7th Cir.1984), quoting NLRB v. Advanced Systems, Inc., 681 F.2d 570, 575 (9th Cir.1982). Tempco has not even come close to this showing. First, there is an innocent interpretation to Cortes’ remarks. If he genuinely believed that Monte was a company shill sent to break up the meeting, statements that his employment at Tempco would be short-lived might have merely been a prediction that Monte would move on to perform the same anti-union function at another company after the election. This interpretation of Cortes’ statements is hardly implausible since Monte, the most outspoken opponent of the Union, had been employed for just a month. More to the point, even if Cortes’ remarks were a threat to Monte, most of the workers would have thought it was an idle threat — i.e., that the Union would be unable actually to fire a worker who spoke against collective bargaining. If a reasonable employee would not think that a threat was within the Union’s power to achieve, it is not sufficiently coercive to taint an election. NLRB v. Sumter Plywood Corporation, 535 F.2d 917, 924 (5th Cir.1976), certiorari denied, 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538.
Tempco’s next argument is that the Union conducted an improper poll. The danger of a poll is that it forces undecided workers to express public support or opposition. We have held that employers may not conduct a poll under any circumstances, but that a Union may unless the polling “in fact was coercive and in fact influenced the result of the election.” Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 365 (6th Cir.1984). Tempco cannot meet that test because there was no poll taken at the May 16 meeting. All that Cortes said was, “See you at the election, we will win. Show your pride,” to which a number of employees shouted “yes!” This was nothing more than a rallying cry to vote. Cortes did not even ask those present to express a preference — that undecided workers might have felt pressured to state an opinion in these circumstances is far-fetched.
The Board’s order will be enforced in full.
. The bargaining unit excludes office clericals, sales persons, employees of independent contractors, professional employees, temporary summer help, guards and supervisors.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
STAUB v. CITY OF BAXLEY.
No. 48.
Argued November 18-19, 1957.
Decided January 13, 1958.
Morris P. Glushien argued the cause for appellant. With him on the brief were Ed Pearce and Bernard Dunau.
J. H. Highsmith argued the cause and filed a brief for appellee.
Briefs of amici curiae urging reversal were filed by Murray A. Gordon for the American Civil Liberties Union, and Carl Rachlin for the Workers Defense League.
Mr. Justice Whittaker
delivered the opinion of the Court.
Appellant, Rose Staub, was convicted in the Mayor’s Court of the City of Baxley, Georgia, of violation of a city ordinance and was sentenced to imprisonment for 30 days or to pay a fine of $300. The Superior Court of the county affirmed the judgment of conviction; the Court of Appeals of the State affirmed the judgment of the Superior Court, 94 Ga. App. 18, 93 S. E. 2d 375; and the Supreme Court of the State denied an application for certiorari. The case comes here on appeal.
The ordinance in question is set forth in the margin. Its violation, which is not denied, arose from the following undisputed facts shown at the trial: Appellant was a salaried employee of the International Ladies’ Garment Workers Union which was attempting to organize the employees of a manufacturing company located in the nearby town of Hazelhurst. A number of those employees lived in Baxley. On February 19,1954, appellant and one Mamie Merritt, also a salaried employee of the union, went to Baxley and, without applying for permits required under the ordinance, talked with several of the employees at their homes about joining the union. While in a restaurant in Baxley on that day they were sought out and questioned by the Chief of Police concerning their activities in Baxley, and appellant told him that they were “going around talking to some of the women to organize the factory workers . . . and hold [ing] meetings with them for that purpose.” Later that day a meeting was held at the home of one of the employees, attended by three other employees, at which, in the words of the hostess, appellant “just told us they wanted us to join the union, and said it would be a good thing for us to do . . . and went on to tell us how this union would help us.” Appellant told those present that the membership dues would be 64 cents per week but would not be payable until the employees were organized. No money was asked or received from the persons at the meeting, but they were invited “to get other girls . . . there to join the union” and blank membership cards were offered for that use. Appellant further explained that the immediate objective was to “have enough cards signed to petition for an election . . . with the Labor Board.”
On the same day a summons was issued and served by the Chief of Police commanding appellant to appear before the Mayor’s Court three days later to answer “to the offense of Soliciting Members for an Organization without a Permit & License.”
Before the trial, appellant moved to abate the action upon a number of grounds, among which were the contentions that the ordinance “shows on its face that it is repugnant to and violative of the 1st and 14th Amendments to the Constitution of the United States in that it places a condition precedent upon, and otherwise unlawfully restricts, the defendant’s freedom of speech as well as freedom of the press and freedom of lawful assembly” by requiring, as conditions precedent to the exercise of those rights, the issuance of a “license” which the Mayor and city council are authorized by the ordinance to grant or refuse in their discretion, and the payment of a “license fee” which is discriminatory and unreasonable in amount and constitutes a prohibitory flat tax upon the privilege of soliciting persons to join a labor union. These contentions were overruled by the Mayor’s Court and, after a continuance, the case was tried and appellant was convicted and sentenced as stated. The same contentions were made in the Superior Court where the city answered, denying “that the ordinance is invalid or void for any of the reasons stated” by appellant, and, after a hearing, that court affirmed the judgment of conviction.
Those contentions were renewed in the Court of Appeals but that court declined "to consider them. It stated that “[t]he attack should have been made against specific sections of the ordinance and not against the ordinance as a whole”; that “[hjaving made no effort to secure a license, the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional” ; and that since it “appears that the attack was not made against any particular section of the ordinance as being void or unconstitutional, and that the defendant has made no effort to comply with any section of the ordinance ... it is not necessary to pass upon the sufficiency of the evidence, the constitutionality of the ordinance, or any other phase of the case . . . .” The court then held that “[t]he trial court did not err in overruling the writ of certiorari” and affirmed the judgment of conviction. 94 Ga. App., at 24, 93 S. E. 2d, at 378-379.
At the threshold, appellee urges that this appeal be dismissed because, it argues, the decision of the Court of Appeals was based upon state procedural grounds and thus rests upon an adequate nonfederal basis, and that we are therefore without jurisdiction to entertain it. Hence, the question is whether that basis was an adequate one in the circumstances of this case. “Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law; and where a case coming from a state court presents that question, this Court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court.” First National Bank v. Anderson, 269 U. S. 341, 346, and cases cited. See also Schuylkill Trust Co. v. Pennsylvania, 296 U. S. 113, 122-123, and Lovell v. Griffin, 303 U. S. 444, 450. As Mr. Justice Holmes said in Davis v. Wechsler, 263 U. S. 22, 24, “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Whether the constitutional rights asserted by the appellant were “. . . given due recognition by the [Court of Appeals] is a question as to which the [appellant is] entitled to invoke our judgment, and this [she has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward non-federal grounds of decision that were without any fair or substantial support . . . [for] if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided.” Ward v. Love County, 253 U. S. 17, 22, and cases cited.
The first of the nonfederal grounds relied on by appellee, and upon which the decision of the Court of Appeals rests, is that appellant lacked standing to attack the constitutionality of the ordinance because she made no attempt to secure a permit under it. This is not an adequate nonfederal ground of decision. The decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. Smith v. Cahoon, 283 U. S. 553, 562; Lovell v. Griffin, 303 U. S. 444, 452. “The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.” Jones v. Opelika, 316 U. S. 584, 602, dissenting opinion, adopted per curiam on rehearing, 319 U. S. 103, 104.
Appellee also contends that the holding of the Court of Appeals, that appellant’s failure to attack “specific sections” of the ordinance rendered it unnecessary, under Georgia procedure, “to pass upon . . . the constitutionality of the ordinance, or any other phase of the case . . .,” constitutes an adequate “non-federal ground” to preclude review in this Court. We think this contention is “without any fair or substantial support” (Ward v. Love County, supra) and therefore does not present an adequate nonfederal ground of decision in the circumstances of this case. The several sections of the ordinance are interdependent in their application to one in appellant’s position and constitute but one complete act for the licensing and taxing of her described activities. For that reason, no doubt, she challenged the constitutionality of the whole ordinance, and in her objections used language challenging the constitutional effect of all its sections. She did, thus, challenge all sections of the ordinance, though not by number. To require her, in these circumstances, to count off, one by one, the several sections of the ordinance would be to force resort to an arid ritual of meaningless form. Indeed, the Supreme Court of Georgia seems to have recognized the arbitrariness of such exaltation of form. Only four years ago that court recognized that an attack on such a statute was sufficient if “the [statute] so challenged was invalid in every part for some reason alleged.” Flynn v. State, 209 Ga. 519, 522, 74 S. E. 2d 461, 464 (1953). In enunciating that rule the court was following a long line of its own decisions. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 269, 182 S. E. 15, 16-17 (1935); Miller v. Head, 186 Ga. 694, 708, 198 S. E. 680, 687-688 (1938); Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571, 30 S. E. 2d 196 (1944); Krasner v. Rutledge, 204 Ga. 380, 383, 49 S. E. 2d 864, 866 (1948).
We conclude that the decision of the Court of Appeals does not rest on an adequate nonfederal ground and that we have jurisdiction of this appeal.
The First Amendment of the Constitution provides: “Congress shall make no law . . . abridging the freedom of speech . . . .” This freedom is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action; and municipal ordinances adopted under state authority constitute state action. Lovell v. Griffin, supra, at 450, and cases cited.
This ordinance in its broad sweep makes it an offense to “solicit” citizens of the City of Baxley to become members of any “organization, union or society” which requires “fees [or] dues” from its members without first applying for and receiving from the Mayor and Council of the City a “permit” (Sections I and II) which they may grant or refuse to grant (Section V) after considering “the character of the applicant, the nature of the . . . organization for which members are desired to be solicited, and its effects upon the general welfare of [the] citizens of the City of Baxley” (Section IV).
Appellant’s first contention in this Court is that the ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council of the City and thereby constitutes a prior restraint upon, and abridges, that freedom. Believing that appellant is right in that contention and that the judgment must be reversed for that reason, we confine our considerations to that particular question and do not reach other questions presented.
It will be noted that appellant was not accused of any act against the peace, good order or dignity of the community, nor for any particular thing she said in soliciting employees of the manufacturing company to join the union. She was simply charged and convicted for “soliciting members for an organization without a Permit.” This solicitation, as shown by the evidence, consisted solely of speaking to those employees in their private homes about joining the union.
It will also be noted that the permit is not to be issued as a matter of course, but only upon the affirmative action of the Mayor and Council of the City. They are expressly authorized to refuse to grant the permit if they do not approve of the applicant or of the union or of the union’s “effects upon the general welfare of citizens of the City of Baxley.” These criteria are without semblance of definitive standards or other controlling guides governing the action of the Mayor and Council in granting or withholding a permit. Cf. Niemotko v. Maryland, 340 U. S. 268, 271-273. It is thus plain that they act in this respect in their uncontrolled discretion.
It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.
In Cantwell v. Connecticut, 310 U. S. 296, this Court held invalid an Act which proscribed soliciting money or any valuable thing for “any alleged religious, charitable or philanthropic cause” unless the “cause” is approved by the secretary of the public welfare council of the state. Speaking for a unanimous Court, Mr. Justice Roberts said:
“It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion ... is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. ... [T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.” 310 U. S., at 305, 307.
To the same effect are Lovell v. Griffin, supra, at 451, 452; Hague v. C. I. O., 307 U. S. 496, 516; Schneider v. State, 308 U. S. 147, 163, 164; Largent v. Texas, 318 U. S. 418, 422; Jones v. Opelika, 319 U. S. 103, adopting per curiam on rehearing the dissenting opinion in 316 U. S. 584, 600-602; Niemotko v. Maryland, 340 U. S. 268, 271; Kunz v. New York, 340 U. S. 290, 293.
It is undeniable that the ordinance authorized the Mayor and Council of the City of Baxley to grant “or refuse to grant” the required permit in their uncontrolled discretion. It thus makes enjoyment of speech contingent upon the will of the Mayor and Council of the City, although that fundamental right is made free from congressional abridgment by the First Amendment and is protected by the Fourteenth from invasion by state action. For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms and lays “a forbidden burden upon the exercise of liberty protected by the Constitution.” Cantwell v. Connecticut, supra, at 307. Therefore, the judgment of conviction must fall.
Reversed.
“Section I. Before any person or persons, firms or organizations shall solicit membership for any organization, union or society of any sort which requires from its members the payments of membership fees, dues or is entitled to make assessment against its members, such person or persons shall make application in writing to Mayor and Council of the City of Baxley for the issuance of a permit to solicit members in such organization from among the citizens of Baxley.
“Section II. Such application shall give the name and nature of the organization for which applicant desires to solicit members, whether such organization is incorporated or unincorporated, the location of its principal office and place of business and the names of its officers, along with date of its organization, and its assets and liabilities. Such application shall further cpntain .the age and residence of applicant including places of residence of applicant for past ten years; and as well as business or profession in which such applicant has been engaged during said time, and shall furnish at least three persons as references to applicant’s character. Said application shall also furnish the information as to whether applicant is a salaried employee of the organization for which he is soliciting members, and what compensation, if any, he receives for obtaining members.
“Section III. This application shall be submitted to a regular meeting of Mayor and Council of City "of Baxley, and in event it is desired by Mayor and Council to investigate further the information given in the application, or in the event the applicant desires a formal hearing on such application, such hearing shall be set for a time not later than the next regular meeting of the Mayor and Council of City of Baxley. At such hearing the applicant may submit for consideration any evidence that he may .desire bearing on the application, and any interested persons shall have the right of appearing and giving evidence to the contrary.
“Section IV. In passing upon such application the Mayor and Council shall consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare of citizens of the City of Baxley.
“Section V. The granting or refusing to grant of such application for a permit shall be determined by vote of Mayor and Council, after consideration and hearing if same is requested by applicant or Mayor and Council, in the same manner as other matters are so granted or denied by the vote of the Mayor and Council.
“Section VI. In the event that person making application is salaried employee or officer of the organization for which he desires to seek members among the citizens of Baxley, or persons employed in the City of Baxley, or 'received a fee of any sort from the obtaining of such members, he shall be issued a permit and license for soliciting such members upon the payment of $2,000.00 per year. Also $500.00 for each member obtained.
“Section VII. Any person, persons, firm, or corporation soliciting members for any organization from among the citizens or persons employed in the City of Baxley without first obtaining a permit and license therefor shall be punished as provided by Section 85 of Criminal Code of City of Baxley.
“Section VIII. All Ordinances of City of Baxley in conflict with [this] ordinance are hereby repealed.
“Section IX. Should any section or portion of this Ordinance be held void, it shall not affect the remaining sections and portions of same.”
This reference obviously was to the National Labor Relations Board as Georgia has no comparable agency.
During that continuance, appellant brought an action in the Superior Court of the county asking an injunction against enforcement of the ordinance and a declaration of its invalidity. The Superior Court found against petitioner and on appeal the Supreme Court of the State affirmed, holding that “If the ordinance is invalid, by reason of its unconstitutionality, or for other cause, such invalidity would be a complete defense to any prosecution that might be instituted for its violation.” Staub v. Mayor of Baxley, 211 Ga. 1, 2, 83 S. E. 2d 606, 608.
Mamie Merritt was also charged with the same offense and was tried with appellant and was likewise convicted and given the same sentence, but it has been stipulated that the judgment of conviction against her shall await, and conform with, the result of this appeal.
For that reason we are not here confronted with any question concerning the right of the city to regulate the pursuit of an occupation. Cf. Thomas v. Collins, 323 U. S. 516.
The ordinance involved in that case proscribed the distribution of literature in the City of Griffin “without first obtaining written permission from the City Manager . . . ,” which he might grant or withhold in his discretion. 303 U. S., at 447. This Court, in reversing a conviction under that ordinance, said: “Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.” Id., at 452.
There the ordinance proscribed the leasing of a hall for a public speech or the holding of public meetings “without a permit from the Chief of Police.” 307 U. S., at 501. Members of a labor union sought permission to hold public meetings in the city for the “organization of unorganized workers into labor unions.” Id., at 504. Permission was refused on the ground that such meetings would cause disorder. They then sought and obtained an injunction prohibiting the city from interfering with their rights of free speech and peaceable assembly. The case came here on certiorari and this Court affirmed. In the course of his opinion, Mr. Justice Roberts said the ordinance was “void upon its face” and that “. . . uncontrolled official suppression [of free speech and peaceable assembly] cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.” Id., at 516.
There an ordinance of Irvington, New Jersey, in effect banned “communication of any views or the advocacy of any cause from door to door” (308 U. S., at 163), without “a written permit from the Chief of Police . . . .” Id., at 157. This Court held the ordinance invalid as a prior restraint upon First Amendment rights and said that such an ordinance “strikes at the very heart of the constitutional guarantees.” Id., at 164.
This Court said: “The mayor issues a permit only if after thorough investigation he 'deems it proper or advisable.’ Dissemination of ideas depends upon the approval of the distributor by the official. This is administrative censorship in an extreme form. It abridges the freedom of religion, of the press and of speech guaranteed by the Fourteenth Amendment.” 318 U. S., at 422.
Chief Justice Stone said: “[H]ere it is the prohibition of publication, save at the uncontrolled will of public officials, which transgresses constitutional limitations and makes the ordinance void on its face.” 316 U. S., at 602.
There the city allowed use of its park for public meetings, but by custom a permit was required from its park commissioner. A religious group known as Jehovah’s Witnesses scheduled several Bible talks to be held in the city park. They applied for a permit to do so, but it was refused. Later they proceeded to hold such a meeting without a permit and when Niemotko opened the meeting he was arrested and later convicted for disturbing the peace, though the meeting was orderly and the real cause was the failure to have a permit. This Court reversed. After pointing out there were no standards governing the discretion of the park commissioner in granting or refusing such permits and referring to Hague v. C. I. O., supra; Lovell v. Griffin, supra, and other cases, it said: “It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here. . . . The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.” 340 U. S., at 272.
There it was said: “This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications [to hold outdoor religious meetings] on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.” 340 U. S., at 293.
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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songer_respond1_1_4
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
PACIFIC TOW BOAT COMPANY, E. W. Stuchell, William D. Carpenter, Harry W. Stuchell, Jr., M. A. Wyman, D. E. Wyman and M. H. Wyman, Copartners Doing Business as Eclipse Lumber Co., Appellants, v. STATES MARINE CORPORATION OF DELAWARE, Appellee.
No. 16374.
United States Court of Appeals Ninth Circuit.
Feb. 9, 1960.
Bogle, Bogle & Gates, Edward C. Biele, Claude E. Wakefield, Seattle, Wash., for appellant.
Summers, Bucey & Howard, Charles B. Howard, T. F. Pauli, Seattle, Wash., for appellee.
Before MAGRUDER, HAMLEY and MERRILL, Circuit Judges.
HAMLEY, Circuit Judge.
This is a collision case brought in admiralty involving the steamship SS Cotton State, the tug Lea Moe, and the barges Eclipse No. 15 and Eclipse No. 25. The accident occurred when No. 15, which had just been towed to the side of the moored Cotton State, drifted into the latter’s slowly moving propeller.
The trial court awarded States Marine Corporation, owner of the Cotton State and libelant in this action, damages in the sum of $22,500. The cross libel of the personal respondents named in the caption of this cause, owners of the barges, against States Marine Corporation was dismissed. They were, however, awarded judgment against The Pacific Tow Boat Company, owner of the tug Lea Moe, in the amount of $9,789.25, plus any amount they were required to pay to States Marine Corporation under the decree.
Pacific and the personal respondents jointly appeal. Three specifications of error are urged, as follows: (1) The court should not have applied the admiralty law presumption of fault against a moving vessel which strikes a stationary one; (2) the court erred in finding that those on the Cotton State were not negligent or contributorily negligent; and (3) the finding that the tug allowed No. 15 to strike the propeller is clearly erroneous.
On the evening of January 10, 1957, the Cotton State, a vessel 438.9 feet in length, docked in Everett, Washington, after a trip from Seattle. It was moored by lines to the south side of Port Dock No. 1, with the port side of the vessel against the pier and its stern offshore. Docking of the vessel was completed at 6:35 p. m. In about five minutes a standard warning sign and flashing light were displayed at the stern, and the jacking gear of the Cotton State was engaged. This caused the propeller to turn slowly, making a full revolution about every seven or eight minutes. Activation of the jacking gear was normal practice and was designed to cool the vessel’s engines slowly, thereby avoiding damage.
It was then dark, sunset having occurred at 4:29 p. m., but visibility, aided by the vessel’s lights, was good. The weather was fair, a light southeasterly wind was blowing, and it was low tide.
At about the time the jacking gear of the Cotton State was engaged, the tug Lea Moe came alongside, towing two barges in tandem. The tug is a diesel-powered vessel 60.9 feet long. Each of the barges, with No. 25 ahead of No. 15, were 110.4 feet long and 37.9 feet wide. A short hawser extending eight to ten feet over the stern of the tug was attached to a stanchion at the forward starboard corner of No. 25. There were coupling lines fastened between the two corner stanchions aft on No. 25 and extending to the two forward corner stanchions on No. 15. The two barges were close-coupled with a foot or two of clearance between them. The tug was burning red and green side lights and towing lights on the mast. There were no lights or lanterns burning or carried on either barge.
Each of the barges was loaded with lumber which was to be taken aboard the Cotton State. The lumber was piled ten to fourteen feet high, stowed out to the sides of the barges and in about ten feet from each end. The tug and barges were brought to a stop at a point where the forward end of No. 25 was from 182 to 188 feet from the stern of the Cotton State. The master of the tug then signaled to the chief mate of the Cotton State for a mooring line. A line was passed down to one of the tug’s deckhands who was then on the forward deck of No. 25. He attached the line to the starboard forward stanchion on that barge. It was then drawn taut and secured on a cleat on the cabin deck of the Cotton State opposite the forward stanchion on No. 25
An unidentified man who was aboard the Cotton State then told the master of the tug that he wanted No. 15 moved forward to the number two hatch and No. 25 moved aft to the number four hatch. This made it necessary for the tug to reverse the positions of the barges. The towing hawser of the tug was therefore cast loose and the tug proceeded towards the rear barge.
The two barges held by the one line from the Cotton State, as described above, then drifted sideways towards the vessel. No. 15 came under the stern counter of the Cotton State and collided with the revolving propeller. This occurred about five minutes after the tug and barges had come alongside. Two or more blades of the propeller struck the port side of No. 15. The tug thereupon towed No. 15 from under the stern and to a place where it would not sink.
The trial court found’that the tug and its owner, Pacific, were at fault and negligent in three particulars in causing and contributing to cause the collision of No. 15 with the propeller of the Cotton State. The barge No. 15 was found to be at fault and negligent in not having navigation lights displayed and burning on the aft end of No. 15. The court found that appellants failed to show that the absence of such navigation lights was not and could not have been a psoximate cause of the collision. It was further found that the faults of No. 15 were occasioned by the primary negligence of the tug and its owner-operators. The trial court also found that the Cotton State was not negligent or contributorily negligent.
Under their first specification of error appellants argue: (1) the measure of the trial court’s decision is “no more than” an application of admiralty’s presumption of fault in favor of a stationary vessel damaged by one under way; and (2) such a presumption does not apply here because the moving vessel (No. 15) was safely at rest and was under the control of those on the moored vessel (Cotton State), the crew of which had participated in securing the barge to the vessel before the barge drifted into the propeller.
We cannot agree that the basis of the trial court’s decision is “no more than application of admiralty’s presumption of fault. * * * ” Of the three findings of fault and negligence on the part of the tug and its owners held to have been proximate causes of the collision, as quoted in footnote 4, only the first purports to give application to admiralty’s presumption of fault. The other two findings pertain to the failure to place navigation lights and have a lookout posted on the aft end of No. 15.
The finding that lights were not placed on the aft end of No. 15 is not questioned by appellants. Nor do they ■challenge the trial court’s ruling that such lights were required by applicable law and regulations. It being established that appellants were guilty of a statutory fault before a collision, the ■drastic and unusual presumption known .as the “Pennsylvania” rule must be given application.
Under this rule the vessel -guilty of violating a statute or regulation
pertaining to equipment or navigation must, in order to escape liability, prove not only that the fault shown probably did not contribute to the collision but also that it could not have contributed to it. The words “could not have,” as used in this rule, do not require the vessel guilty of a statutory fault to prove that its fault could not by any stretch of the imagination have had any causal relation to the collision no matter how speculative, improbable, or remote. Seaboard Tug & Barge, Inc. v. Rederi, AB/DisA, 1 Cir., 213 F.2d 772, 775. But they do cast upon such vessel the burden of establishing that the violation could not reasonably be held to have been a proximate cause of the collision. States Steamship Co. v. Permanente Steamship Corp., supra, 231 F.2d at page 87.
The trial court found that appellants had failed to maintain this burden and so had not overcome the presumption. Appellants contest this finding, calling attention to testimony which in their opinion indicates that lights on No. 15 were not needed for observation from the Cotton State.
If this evidence was such as to call for a finding of fact to that effect, appellants maintained the burden cast upon them by the Pennsylvania rule. This court has twice held that noncompliance with applicable rules regarding lights could not possibly have caused the accident where persons aboard the other vessel actually saw what needed to be seen in order to avoid the accident.
There’ is considerable evidence given by persons aboard the Cotton State to the effect that visibility was “good”. The trial court made a finding to that effect. There was also testimony by these witnesses that the tug and the two barges were seen as they came alongside. Boatswain Dusevoir, who secured the line on the Cotton State after it had been attached to a stanchion on No. 25, testified that “it may have been possible” to determine from that point where the stern end of No. 15 was with reference to the stern of the Cotton State. He did not, however, make that determination.
The chief officer, who was present at the point where the line was secured on the Cotton State, knew that there was another barge behind the forward barge because he saw a pile of lumber behind the first barge. He testified, however, that he could mot determine where the stern end of the after barge was with respect to the stern of the vessel because the “lumber was too high.” He further testified that it was very dark at that time “but you could see everything around by the lights on the ship.” No one had informed the chief officer as to the length of the barges.
Appellants argue that the chief officer’s failure to see the aft end of No. 15 was not because of the lack of lights on her, but because lumber piled on the deck of No. 15 to a height of fourteen feet obscured a view of its stern. But, had the required lights been showing, the piled lumber would not have prevented the chief officer from determining the location of the stern of No. 15. The regulations cited in footnote 5 require that the white lights on each corner of the stern • of. the aft barge be “so placed as to show all around the horizon.” This means that the lights must be so placed as to show in all directions above the cargo.
Had lights been showing at the stern of No. 15, the chief officer might have been alerted to the possible danger. He could then have acted to avert the damage by directing a different mooring operation and by ordering that the propeller be stopped.
Taking into consideration all of the evidence bearing upon the matter, we conclude that the trial court’s finding to the effect that appellants had not maintained the burden placed upon them by the Pennsylvania rule is not clearly erroneous. It follows that the finding with respect to the failure to show lights on the barges is alone sufficient to establish fault and negligence on the part of appellants, constituting a proximate cause of the collision.
But, as noted above, the trial court also based a finding of fault and negligence upon the presumption arising under admiralty law with respect to collisions between a moving and a stationary vessel. Appellants argue that such a presumption does not apply under the circumstances of this case and, in the alternative, that such presumption was rebutted by the evidence.
States Marine Corporation, as libelant, had the initial burden of proof to show that the Cotton State was damaged because of appellants’ negligence. The Clara, 102 U.S. 200, 26 L.Ed. 145. Under normal circumstances, however, when a libelant proves that its vessel while moored and stationary was struck by a moving vessel, a presumption of negligence on the part of the moving vessel arises sufficient to establish a prima facie case.
Appellants contend, however, that the presumption does not apply where the colliding vessels are not strangers and seme voluntary relationship exists between them. In this case the relationship relied upon arises from the fact that No. 15 had cargo which was to be loaded on the Cotton State, and the barge was in process of being moored to the Cotton State at the time the accident occurred.
The fact that No. 15 was in process of being moored to the vessel which was damaged by the collision would not, standing alone, prevent application of the presumption. On the contrary, such a circumstance definitely calls for its application
The other arguments advanced by appellants with regard to this presumption tend to show not that the presumption is inapplicable but that it has been rebutted. In this connection appellants assert that persons aboard the Cotton State had participated in the efforts being made to moor No. 15 to the Cotton State and were actually responsible for its drifting into that vessel’s propeller.
There is evidence tending to support appellant’s theory of how the accident happened. There is other evidence, however, which tends to a contrary conclusion. In this latter category falls some of the testimony of the tug master. He testified that while he stopped the scows where an unidentified man on the Cotton State indicated, he determined for himself that he was then far enough forward for the barges to clear the stem of the Cotton State. The trial court found on all of the evidence that the place for fixing the line was determined by those aboard the tug and tow.
In our view the trial court’s implicit finding of fact, that appellants had failed to overcome the presumption of negligence, is not clearly erroneous.
Under their second specification of error appellants argue that the trial court erred in finding that those on the Cotton State were not negligent or contributorily negligent.
Much of the argument under this point covers factual matters already discussed. Some contentions advanced on this branch of the case, however, have not been discussed above. It is asserted that the propeller was started without clearance from a lookout on the Cotton State. But it was not established that the full length of the tug and barges could have been ascertained from one aboard the Cotton State before the propeller was put in motion. Even if it could have been, an observer aboard the vessel having that information could hardly have anticipated that the barges would be temporarily moored in such a way as to permit the rear barge to drift into the stern of the Cotton State.
It is contended that no effort was made to minimize damage after the collision by promptly ordering that the propeller be stopped. The jacking gear, however, was designed to cut off automatically in the event of an interference with the propeller. It did so after about three blades had struck the barge. The chief officer on the Cotton State could have reasonably assumed that this automatic cutoff would stop the propeller at the earliest possible moment and before any signal to the engine room could produce results.
Appellants also argue that the only possible explanation for the collision is that those on board the Cotton State must have failed to control the mooring line, thereby permitting the barges to pivot on the side of the ship. The captain of the tug testified that the barge could not have pivoted unless there was slack in the line. A deckhand in the tug testified that after the collision the line was still intact at the point where it was secured to a stanchion on No. 25.
The trial court was not required to accept the tug master’s opinion as to the only way in which the accident could have occurred. There was no evidence that the line became loose at the point where it was secured to the Cotton State. The trial court could well conclude that, considering the weight and length of the barges and the existing wind, a single line extending downward at an angle for more than forty feet to the starboard stanchion on the front of the leading barge could swing and give enough to permit the port side of the second barge to come into contact with the propeller 180 feet astern. The trial court could also find on the evidence in this case that the responsibility for relying upon a single line so placed was solely upon the master of the tug.
The trial court, in our opinion, did not err in finding that those on the Cotton State were not negligent or contributorily negligent.
Under their final specification of error appellants argue that the trial court’s finding that “the rear or trailing barge No. 15 was allowed by the tug Lea Moe to drift under the stern counter and to collide with the slowly revolving propeller,” is clearly erroneous.
Our conclusion that the trial court did not err in this regard follows from what has just been said in discussing the second specification of error.
We have not overlooked appellant’s contention, perhaps applicable to all the specifications of error, that a determination that a party is or is not negligent is a conclusion of law. Appellants argue from this that such a trial court determination is not protected by the “clearly erroneous rule” announced in McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 8, 99 L.Ed. 20, and that this court should make its own independent determination on the question of negligence. The view thus presented, as appellants point out, has long prevailed in the Second Circuit, and has not been modified in that circuit since McAllister was decided. Verbeeck v. Black Diamond Steamship Corp., 2 Cir., 269 F.2d 68, 70, and cases there cited.
In the McAllister case the Supreme Court dealt specifically with a “finding of fact” that the master of the ship was negligent. It was with respect to this finding that the court there held that “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.” Since that decision this court has uniformly regarded determinations as to negligence made in admiralty cases as findings of fact which are not to be overturned unless clearly erroneous.
It is true that any determination as to negligence requires the testing of particular facts against a predetermined standard of conduct. The fixing of that standard is a jural act. To this extent a question of law is involved, and hence a conclusion of law is required, in any determination as to negligence. Nothing said in McAllister or in any of our previous decisions was intended to limit the scope of review in so far as the fixing of the applicable standard of conduct is concerned.
The standards of conduct here applied by the trial court, as we understand them, comport fully with accepted legal principles. The findings of fact whereby those standards were given application in this case are not clearly erroneous.
Affirmed.
. The decree runs jointly and severally against the tug Lea Moe and the barge Eclipse No. 15, in rem, and against the principals upon the respective release and cost bonds filed by their owners, and Pacific Tow Boat Company, in personam.
. The cabin deck of the Cotton State was about ten feet above the top of the lumber which was piled from ten to fourteen feet above the deck of the barge. It follows that the cleat to which the line was secured on the Cotton State must have been from twenty to twenty-four feet above the stanchion to which it was fastened on No. 25. Since the line was secured to the starboard stanchion on the barge and proceeded up at the indicated angle to the cabin deck of the Cotton State, it must have been more than forty feet long.
. This man was not a member of the crew of the Cotton State. The chief officer of that vessel assumed that he was an employee of the company which had supplied the lumber stowed on the barges.
. The court found:
“(a) That the tug Lea Moe and its tow, being moving vessels, collided with the slowly revolving propeller of the moored and stationary SS Cotton State.
“(b) That the tug Lea Moe and respondent Pacific Tow Boat Company were negligent in failing to place and assist in placing, and seeing that there was placed upon the after end of barge No. 15, a navigation light, as required, under conditions then existing, by applicable law and regulations.
“(c) That the tug Lea Moe and respondent The Pacific Tow Boat Company were negligent for not having a lookout posted on the after end of barge No. 15.”
. See 33 TJ.S.C.A. §§ 157 and 171, and 33 C.F.R. §§ 80.14 and 80.16(a), (b) and (h). In their opening brief appellants state that they “do not concede the tug ■or scows were guilty of any fault with respect to lights or lookout.” They do not, however, state any reason why they should not be held to have violated the statutes and regulations pretaining to lights.
. Named after The Pennsylvania, 19 Wall. 125, 86 U.S. 325, 22 L.Ed. 148, in which the rule was first announced.
. See Gilmore and Black, Admiralty, 404-405 (1957). Tbe Pennsylvania rule lias been consistently applied in this circuit, as indicated by the cases cited in States Steamship Co. v. Permanente Steamship Corp., 9 Cir., 231 F.2d 82, 86.
. Van Camp Sea Food Co. v. Di Leva, 9 Cir., 171 F.2d 454, 456; The Redwood, 9 Cir., 81 F.2d 680, 686-687.
. The trial court also found fault'and negligence consisting of the failure to post a lookout on the aft end. of No. 15, but we do not find it necessary to discuss this finding.
. This presumption was first announced and applied in The Louisiana, 3 Wall. 164, 70 U.S. 164, 173, 18 L.Ed. 85. It has previously been recognized arid applied by this circuit. See Sehlmeyer v. Romeo Co., 9 Cir., 117 F.2d 996; The Marian, 9 Cir., 66 F.2d 354, 356.
. The Chalmette, D.C.S.D.N.Y., 52 F. 174; The British Empire, D.C.S.D.N.Y., 24 F. 493; Griffin on Collision, 385 (1949).
. Albina Engine & Machine Works, Inc. v. American Mail Line, Ltd., 9 Cir., 263 F.2d 311, 314; Amerocean Steamship Co. v. Copp, 9 Cir., 245 F.2d 291, 293; City of Long Beach v. American President Lines, Ltd., 9 Cir., 223 F.2d 853, 855. The Sixth Circuit has followed the same practice. Imperial Oil, Limited v. Drlik, 6 Cir., 234 F.2d 4.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
|
songer_district
|
A
|
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".
TEMPLE ANTHRACITE COAL CO. v. FEDERAL TRADE COMMISSION.
No. 4434.
Circuit Court of Appeals, Third Circuit.
July 9, 1931.
WOOLLEY, Circuit Judge, dissenting.
Wm. J. Fitzgerald, John B. Wilson, and John P. Kelly, all of Scranton, Pa., for plaintiff.
Robert E. Healy and Martin A. Morrison, both of Washington, D. C., Edward L. Smith, of Phillipsburg, N. J., and H. A. Cox, of Washington, D. C., for defendant.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge (now Circuit Judge).
THOMPSON, Circuit Judge.
This case comes here upon the petition of the Temple Anthracite Coal Company for review of an order entered by the Federal Trade Commission requiring the petitioner to cease and desist from alleged violation of the provisions of section 7 of the Clayton Act (Act of Oetoher 15,1914, e. 323, § 7, 38 Stat. 731 [15 USCA § 18]).
The uneontradieted facts developed at the hearing are as follows:
The petitioner is a corporation of the state of Delaware organized August 25,1924, with an authorized capital stock of 60,000 shares of no par value; its registered office is in Dover, Del.; and it maintains an office in Scranton, Pa.
The Temple Coal Company is a Pennsylvania corporation with its principal office and place of business in Scranton. Its capital consists of 10,000 shares of common stock of par value of $100, all issued and outstanding in October, 1924, when the Commission’s complaint was issued. It has been and is engaged in mining and selling anthracite coal from its mines in Pennsylvania. Prior to 1924, it had acquired and now owns the physical assets of the Northwest Coal Company, Edgerton Coal Company, Sterrick Creek Coal Company, Babylon Coal Company, and Forty Fort Coal Company. It owns all of the capital stock of the Mount Lookout Coal Company, engaged in the mining of anthracite coal in Pennsylvania and in the sale of such coal. It also owns 80 per cent, of the capital stock of the Lackawanna Coal Company, Limited, also engaged in mining of anthracite coal in Pennsylvania and the sale of such coal.
The collieries owned by the Temple Coal Company and those in which it owns a controlling stock interest are located in Laekar-wanna and Luzerne counties in the northern anthracite field of Pennsylvania. In August, 1924, the total coal in place in all of the properties owned, controlled, and leased by the Temple Coal Company, the Lacka-wanna Company, Limited, and the Mount Lookout Coal Company was approximately 66,730,205 tons, and the value of the physical properties of those companies was in coal $9,192,750 and in property $3,450,000. Since 1914, the coal mined by the Temple Coal Company, the Lackawanna Coal Company, Limited, and the Mount Lookout Company has been and is sold through Thome, Neale & Co., Inc., which is engaged in the business of buying and selling anthracite and bituminous coal and maintains offices in Philadelphia, Buffalo, Chicago, Baltimore, and New York. From its offices sales of coal are solicited throughout a large territory traveled by representatives of such offices. The Buffalo office solicits and makes sales in Canada also. Thorne, Neale & Co., Inc., secures orders for coal mined by Temple Coal Company, Lacka-wanna Coal Company, Limited, and Mount Lookout Coal Company, which orders are transmitted to Temple Coal Company by Thorne, Neale & Co., Inc. These orders give the name of the consignee, destination, route of shipment, the equipment of the cars containing the coal, the mine from which the coal is to be shipped, the quantities and kinds of coal ordered, and the price of the coal, f. o. b. mine. If the price mentioned in the order is satisfactory to Temple Coal Company, the coal is shipped by Temple Coal Company to the customer at the price offered. Thorne, Neale & Co., Inc., collects from the purchaser the selling price of the coal, paying to Temple Coal Company the selling price, less a commission of 4 per cent, for making the sale. In the event that the price on the order given by Thome, Neale & Co., Inc., to Temple Coal Company for the coal to be shipped is not satisfactory to Temple Coal Company, the order is not filled. Such has been the method of sale employed by Temple Coal Company, Mount Lookout Coal Company, and said Lackawanna Coal Company, Limited, with Thome, Neale & Co.-, Inc., at least since 1914.
When shipments of coal are made directly by Temple Coal Company to Thome, Neale & Co., Inc., the coal is billed to Thome, Neale & Co., Inc., at a price agreed upon between it and Temple Coal Company, which price is paid to Temple Coal Company by Thome, Neale & Co., Inc., irrespective of the price received by Thome, Neale & Co., Inc., from the ultimate purchaser.
The greater part of the shipments of coal on orders furnished by Thome, Neale & Co., Ine., went into interstate commerce. Some shipments were made to their customers in Canada.
The East Bear Ridge Colliery Company is a Pennsylvania corporation with its principal office and place of business in Scranton, Pa. Its authorized capital is 25,000 shares of common stock of a par value of $25 each. It is engaged in the business of mining anthracite coal in Pennsylvania and in selling such coal. Its collieries are located in the southdm anthracite region in Schuylkill county, Pa., about seventy miles distant from the collieries of the Temple Coal Company and the other coal companies operated by the latter company. Its physical property in September, 1924, consisting of its mines, improvements, and developments, was valued at $893,492.42, and its coal tonnage in the mine was estimated at 4,700,700 tons. Since 1914, the coal mined by the East Bear Ridge Colliery Company has been sold through Madeira, Hill & Co., which is engaged in the business of buying and selling anthracite and bituminous coal.
Madeira, Hill & Co. maintains offices in Philadelphia, New York, Boston, and Washington, from which offices sales of coal are solicited throughout a large territory traveled by the representatives of such offices. Madeira, Hill & Co. secures orders for coal mined by East Bear Ridge Colliery Company, which orders are transmitted to East Bear Ridge Colliery Company by Madeira, Hill & Co. These orders give the name of the consignee, destination, route of shipment, the equipment of the ears containing the coal, the quantities and kinds of coal ordered, and the price of the coal, f. o. b. mine. If the price mentioned in the order is satisfactory to East Bear Ridge Colliery Company, the coal is shipped by East Bear Ridge Colliery Company f. o. b. mine consigned to the customer at the said price, Madeira, Hill & Co. paying to East Bear Ridge Colliery Company the selling price of the coal, less a commission of 4 per cent, for making such sale. Madeira, Hill & Co. collects from the purchaser the selling price of the coal. In the event that the price on the order given by Madeira, Hill & Co. to East Bear Ridge Colliery Company for the coal to be shipped is not satisfactory to East Bear Ridge Colliery Company, the order is not filled. Such has been the method of sale employed by East Bear Ridge Colliery Company with Madeira, Hill & Co. at least since 1914.
In addition to shipping coal to customers secured by Madeira, Hill & Co., East Bear Ridge Colliery Company, in the usual course of its business, ships coal directly to Madeira, Hill & Co. When such shipments of coal are made directly by East Bear Ridge Colliery Company to Madeira, Hill & Co., the coal is billed to Madeira, Hill & Co. at a price agreed upon between them and East Bear Ridge Colliery Company, which price is paid to East Bear Ridge Colliery Company by Madeira, Hill & Co., irrespective of the price received by Madeira, Hill & Co. from the ultimate purchaser.
The coal sold on orders furnished by Madeira, Hill & Co. was shipped f. o. b. mines, consigned to purchasers in Pennsylvania and interstate commerce. The Temple Coal Company, the Mount Lookout Coal Company, the Lackawanna Coal Company, Limited, and the East Bear Ridge Colliery Company sold coal of the same kinds and sizes, and Thorne, Neale & Co., Inc., and Madeira, Hill & Co. were in active competition in securing orders for coal. The orders solicited, obtained, and filled through Thome, Neale & Co. were in the same territory, in the same cities, and, in many instances, from the same dealers from whom orders for coal, mined by the East Bear Ridge Colliery Company, were solicited, obtained, and filled through Madeira, Hill & Co.
On or about October 11, 1924, the petitioner, the Temple Anthracite Coal Company, acquired by purchase, and has ever since owned, all of the outstanding capital stock of the Temple Coal Company, and on or about the same date acquired by purchase, and ever since such acquisition has owned, 98 per cent, of the outstanding capital stock of the East Bear Ridge Colliery Company. Through its stock ownership, the Temple Anthracite Coal Company has chosen the officers and directors of the Temple Coal Company and its subsidiary companies and of the East Bear Ridge Colliery Company.
The Federal Trade Commission found that the effect of the acquisition by the Temple Anthracite Coal Company of the) capital stock of Temple Coal Company and the East Bear Ridge Colliery Company and the use of such stock has been and is to substantially lessen competition in interstate commerce between the Temple Coal Company and the East Bear Ridge Colliery Company in violation of tbe second paragraph of section 7 of the Clayton Act (15 USCA § 18, par. 2). The Commission thereupon entered an order upon the petitioner in the alternative, requiring it, within ninety days of the date of service upon it of the order, to divest itself in good faith of all the capital stock of the Temple Coal Company owned by it and all of its interest therein; or, within ninety days, to divest itself in good faith of all the capital stock of the East Bear Ridge Colliery Company owned by it and all of its interest therein.
The petitioner raises the question whether the Federal Trade Commission had jurisdiction to make the order complained of, its contention being that, because it is a holding company and transacts no business except as holder and owner of the stock of the Temple Coal Company and the East Bear Ridge Colliery Company, and is not engaged in interstate commerce, it does not come within the terms of the Clayton Act. The second paragraph of section 7 of the Clayton Act, upon which the complaint was based, reads as follows: “No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effeet of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition between such corporations, or any of them, whose stock or other share capital is so acquired, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.”
It is clear from the language of the act that it is the fact of the stock of two or more corporations engaged in interstate commerce being acquired by any other corporation, producing the effeet, through the stock-owning corporation, of either substantially lessening competition between them or restraining commerce, or, tending to create a monopoly of any line of commerce, that gives Congress power to prohibit the acquiring of such stock. The power of Congress to legislate upon the subject is not, therefore, dependent upon the corporation prohibited from such stock ownership being itself engaged in interstate commerce. The very language of the act answers the question raised by the petitioner.
It is argued quite extensively on the part of the petitioner that the sales contracts of the Temple Coal Company with Thome, Neale & Co. and those of East Bear Ridge Colliery Company with Madeira, Hill & Co., under which the coal of the respective companies are sold by the respective sales agents, are not contracts of agency, but are contracts of sale. That contention is made because'of the implied concession that, if they are agents of the coal mining companies, then the shipments of coal f. o. b. mines, consigned to customers of the sales agents, are, under the doctrine of agency, the acts of the principal, and the customers are the customers of the principal. Therefore, shipments by the coal companies at the mines f. o. b. ears constitute engagement of the coal companies in interstate commerce. If, however, Thome, Neale & Co. and Madeira, Hill & Co. are purchasers of the coal, then the delivery to the railroad company at the mines divests title in the coal when it is loaded upon the ear, which it is contended, is not interstate commerce. For the purposes of this case, we do not deem it necessary to decide whether the contracts with the sales agents are, in the law, contracts of ageney, as contended by the Commission, or contracts of sale as contended by the petitioner. In either ease, the coal, so shipped becomes a part of interstate commerce and the shipments are within the regulatory power of Congress.
Pennsylvania R. Co. v. Clark Brothers Coal Mining Co., 238 U. S. 456, 35 S. Ct. 896, 59 L. Ed. 1406; Pennsylvania R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120, 37 S. Ct. 46, 61 L. Ed. 188; Swift & Co. v. United States, 196 U. S. 375, 25 S. Ct. 276, 49 L. Ed. 518.
We conclude that the case was within the jurisdiction of the Federal Trade Commission in carrying out the powers which Congress has granted it.
The Commission reached the conclusion as an ultimate fact that the effect of the purchase, acquisition, and holding of the stock of the two corporations by the respondent has been or may be to substantially lessen competition between the corporations, as alleged in its complaint. We will, therefore, consider whether that ultimate finding of fact is sustained by the basic facts as found from the evidence before the Commission. While the act provides that the findings of fact made by the Commission are final and conclusive, it still remains the duty of the supervising court to determine whether the facts found are such as to warrant the conclusion that the effect of the acquisition of the stock of the two corporations is or may be to substantially lessen competition between them. See Curtis Publishing Co. v. Federal Trade Commission (C. C. A.) 270 F. 881, 909; Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568, 579, 580, 43 S. Ct. 210, 67 L. Ed. 408; International Shoe Company v. Federal Trade Commission, 280 U. S. 291, 297, 50 S. Ct. 89, 91, 74 L. Ed. 431.
It ■ is established by the evidence and found by the Commission that Thome, Neale & Co., Inc., and Madeira, Hill & Co. have been and are in active competition in selling all of the coal of the respective collieries, excepting some small quantities sold locally.
' There are no faets found, and we find no evidence produced before the Commission, to show the relation between the percentage of coal mined and sold by the Temple Coal Company and its subsidiaries and that sold by the East Bear Ridge Colliery Company to the total output of anthracite coal of the same kind and quality in the whole anthracite region. From the faets found as to the value of the annual output of the respective mines, it is quite apparent that the percentage of these mines to the total output cannot be consequential. Therefore, if competition were lessened, its effect upon the whole interstate trade in anthracite coal would not tend to create a monopoly through substantially lessening competition. There is no fact found or evidence to show that there was, prior to the acquisition of the stock, actual direct competition between the Temple Anthracite Company and the East Bear Ridge Coal Company. The Temple Coal Company disposed of all of its coal either by sale or agency contract, through Thome, Neale & Co., Inc. The East Bear Ridge Colliery Company disposed of all of its coal either by sale or agency contract through Madeira, Hill & Co. However, the evidence shows and the faets found from the evidence show that these two wholesalers in coal were and are in active competition in obtaining orders for sale and in selling to customers through their offices in various cities.
As to this competition, the Commission has found in paragraph 8 as follows: “Said Temple Coal Company, said Mount Lookout Coal Company, said Lackawanna Coal Company, Ltd., and said East Bear Ridge Colliery Company sold coal of the same kinds and sizes, and said Thome, Neale, and Company, Inc., and said Madeira, Hill and Company were in competition in securing orders for coal, orders for coal mined by said Temple Coal Company, said Mount Lookout Coal Company and said Lackawanna Coal Company, Ltd., being solicited, obtained and filled through said Thome, Neale and Company, Inc., in the same territory, in the same cities and, in many instances, from the same dealers from whom orders for coal mined by said East. Bear Ridge Colliery Company were solicited, obtained and filled through said Madeira, Hill and Company.”
It is shown that, at the time of the hearings and during the period covered by the testimony, these wholesalers were competing in the open market for customers, not only for this coal, but for coal mined by other collieries, and that they are still competing in the same markets and in exactly the same way as they were before the complaint was filed. As long as the contracts with the wholesalers continue in existence, and there is nothing in the ease to show that they will not continue, they are each under the same incentive to acquire and sell the output of the respective collieries as they were prior to the complaint. There is no evidence and no faets are found to show that competition between Thome, Neale & Co., Inc., and Madeira, Hill & Co., in selling the coal of these two companies, has been or may be reduced through the ownership of the stock of the respective companies by Temple Anthracite Coal Company. The only effect which the ownership may be found to have brought about is the reduction of overhead and operating expenses.
In International Shoe Co. v. Federal Trade Commission, supra, Mr. Jfistice Sutherland says:
“Section 7 of the Clayton Act, as its terms and the nature of the remedy prescribed plainly suggest, was intended for the protection of the public against, the evils which were supposed to flow from the undue lessening of competition. In Standard Oil Co. v. Federal Trade Commission, 282 F. 81, 87, the Court of Appeals for the Third Circuit applied the test to the Clayton Act which had theretofore been held applicable to the Sherman Act (15 USCA § 1 et seq.), namely, that the standard of legality was the absence or presence of prejudice to the public interest by unduly restricting competition or unduly obstructing the due course of trade. In Federal Trade Comm. v. Sinclair Co., 261 U. S. 463, 476, 43 S. Ct. 450, 454, 67 L. Ed. 746, referring to the Clayton Act and the Federal Trade Commission Act (15 USCA §§ 41-51), this court said:
“ ‘The great purpose of both statutes was to advance the public interest by securing fair opportunity for the play of the contending forces ordinarily engendered by an honest desire for gain.’
“Mere acquisition.by one corporation of the stock of a competitor, even though it result in some lessening of competition, is. not forbidden; the act deals only with such acquisitions as probably will result in lessening competition to a substantial degree, Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346, 357, 42 S. Ct. 360, 66 L. Ed. 653; that is to say, to such a degree as will injuriously affect the public.”
We cannot conclude, because of the ownership in one corporation of the stock of two corporations whose output is sold under contracts with competing wholesalers as distributors, who are found to be in active competition, that these contracts will or are likely to be annulled or terminated. We must take the facts as they exist, and, finding as we do that Thorne, Neale & Co., Inc., and Madeira, Hill & Co. are in active competition, we assume that the interests of the public .will be preserved so long as that competition continues.
The Commission found in paragraph 10 of its finding of fact as follows: “The effect of the acquisition by respondent Temple Anthracite Coal Company of the said capital stocks of said Temple Coal Company and of said East Bear Ridge Colliery Company, and the use of such stocks by the voting or granting of proxies, or otherwise, has been and is to substantially lessen competition in interstate commerce between said Temple Coal Company and said East Bear Ridge Colliery Company.”
With no evidence in the ease to support the finding of fact that the effect of the ’acquisition of the stock “has been and is to substantially lessen competition,” our conclusion is that the actual active competition which is shown by the evidence, without contradiction, to have existed and to continue to exist between Thome, Neale & Co., Inc., and Madeira, Hill & Co., negatives, so long as it may exist, the very effect which the Commission has found to be caused by the acquisition by the Temple Anthracite Coal Company of the capital stocks of the mining companies.
It is therefore ordered that the order of the Federal Trade Commission be annulled and set aside.
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_othappth
|
A
|
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 appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In re CRYSTAL PALACE GAMBLING HALL, INC., Debtor. CRYSTAL PALACE GAMBLING HALL, INC., Frank P. Silver, Donald Brown, Frank Meyer, Appellants and Cross-Appellees, v. MARK TWAIN INDUSTRIES, INC., Appellee and Cross-Appellant.
Nos. 85-1614, 85-1663.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 8, 1986.
Decided May 20, 1987.
Eric Zubel, Las Vegas, Nev., for appellants and cross-appellees.
Dawn Coda-Wagener, Los Angeles, Cal., for appellee and cross-appellant.
Before NORRIS, BEEZER and BRUNETTI, Circuit Judges.
PER CURIAM:
I
FACTS AND PROCEEDINGS BELOW
On January 16, 1980, the Crystal Palace Gambling Hall filed a Chapter 11 bankruptcy petition. On May 25, 1984, Crystal Palace and Mark Twain Industries (MTI) entered into an agreement whereby Crystal Palace would sell the casino to MTI. Pursuant to this purchase agreement, MTI deposited $450,000 into an escrow account on June 18 of that year.
Crystal Palace had filed a plan of reorganization on May 31, 1984, and on October 1 the district court ordered that the proposed plan be confirmed. In that order, the court stated that “[t]he effective date of the plan shall be the date the sale to Mark Twain Industries closes, which sale shall close not less than thirty (30) days from the entry of this Order.” For some reason, the district court’s order of October 1 was not entered until October 17.
On October 29, counsel for Crystal Palace approached the district court ex parte, without notice to MTI, and sought modification of the district court’s order. As a result, the district judge entered a second order modifying the terms of the first order from “not less than thirty days” to “[the] sale shall close by October 31,1984.” That order was entered on November 1 (the day after the order required the sale to close). On October 30, counsel for MTI filed a motion to extend the time for closing the sale until November 10.
On November 8, MTI petitioned for an expungement of the court’s October 29 order, and sought an order confirming the plan of reorganization. The court granted the motion, expunged its second order, and ordered the sale to occur “on or before ... November 16, 1984.”
Between November 9 and November 19, the debtor filed numerous motions. However, none of these motions sought clarification or reconsideration of the district court’s order that required the sale to close on November 16. On November 13; MTI deposited the purchase price ($4,500,000) with the escrow holder.
On November 15, Crystal Palace filed a notice of appeal from the court order that required sale on November 16. This appeal was entitled In re Crystal Palace Gambling Hall, Inc., Debtor, Crystal Palace Gambling Hall, Inc. vs. Mark Twain Industries, No. 84-2735. Crystal Palace did not seek a stay of the district court’s order pending appeal. On December 27, MTI filed a motion for dismissal of the appeal, and on February 21, 1985, the appeal was dismissed.
On November 16, 1984, the district court appointed a special master for the purpose of considering (1) MTI’s motion for an order to show cause why the debtor should not be held in contempt, (2) Crystal Palace’s motion requiring MTI to forfeit the earnest money deposit, and (3) Crystal Palace’s modified plan of reorganization.
On November 27, Crystal Palace signed an agreement with Margaret Elardi to sell the casino to her. Also on November 27, the special master filed his report and recommendations. Both parties filed objections to the special master’s report, and on December 31, the district judge issued an order as to the objections of both parties. In that order, the court generally adopted the master’s recommendations, and directed the appellants to immediately execute all the closing documents necessary to sell the casino to MTI. Contrary to the master’s recommendation, the judge found both Crystal Palace and its shareholders in contempt of court for failure to close the sale in conformity with his prior order. The judge ordered the debtor and shareholders to pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.” The judge also expressed concern that he had been misled into signing the October 29, 1984 order.
The sale to MTI was finally concluded on January 11, 1985. On January 30, Crystal Palace filed a notice of appeal from the district court’s December 31 order, and on February 8, the shareholders joined in that appeal. On February 8, MTI also noticed its cross-appeal of the district court’s December 31 order.
II
JURISDICTION
As we have stated previously, “[w]here the contempt proceeding is the sole proceeding before the district court, an order of civil contempt finding a party in contempt of a prior final judgment and imposing sanctions is a final decision under section 1291.” Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). The order is final for purposes of section 1291 “[e]ven though the size of the sanction imposed by the order depends upon the duration of contumacious behavior occurring after entry of the contempt order, ....” Id. Thus, the contempt order in this case is appealable. However, the filing of a timely notice of appeal is “mandatory and jurisdictional....” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960).
MTI alleges that the shareholders did not file a timely notice of appeal. Federal Rule of Appellate Procedure 4(a) states that notice of appeal “shall be filed with the clerk of the district court within 30 days after ... entry of the ... order appealed from____” Fed.R.App.P. 4(a)(1). The order appealed from was entered December 31, 1984, and MTI argues that since notice of appeal was not filed until February 8, 1985, well past the thirty day limit, it was untimely.
Generally, an notice of appeal must be filed within thirty days. However, under the circumstances of this case, the shareholders had fourteen days after Crystal Palace filed its appeal to file their notice of appeal. Federal Rule of Appellate Procedure 4(a)(3) states:
f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.
The clear language of this rule indicates that this fourteen day period applies to “any other party” to a lawsuit. It does not distinguish between appellants and appellees. This was the viewpoint of those who drafted the rule. The 1966 committee note to this subsection states:
[t]he added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.
Leading commentators have stated that this rule “permits any party to the action ... such added time as the sentence affords.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 204.11[1] (2d ed. 1986) (emphasis added); see also id. at ¶ 203.25[3].
The appeal by the shareholders was filed within eight days of the initial appeal by Crystal Palace. Thus, even though thirty days had passed since the final judgment, the shareholders’ appeal was timely, pursuant to Fed.R.App.P. 4(a)(3). Thus, we have jurisdiction over the shareholders’ appeal.
Ill
STANDARD OF REVIEW
“A court has wide latitude in determining whether there has been contemptuous defiance of its order,” and we review a lower court’s decision to impose sanctions for contempt for an abuse of discretion. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984). Under this standard, a contempt order will not be reversed unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached after it weighed the relevant factors. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985).
IV
ANALYSIS
A. The District Court’s Standard of Review.
The appellants argue that the district court must accept the master’s findings of fact unless they are clearly erroneous. We agree. See Fed.R.Civ.P. 53(e)(2); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2614 (1971); Leader Clothing Company v. Fidelity and Casualty Company of New York, 237 F.2d 7, 11 (10th Cir.1956). The district court accepted all of the master’s findings of fact and conclusions of law except for the master’s conclusions concerning contempt.
Congress has determined that the power to hold a party in contempt is a discretionary power vested in the court whose order has been violated. “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority ... as ... disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.G. § 401 (1982). The appellants in this case did not violate an order of the master, they violated an order of the district court. Thus, the discretion to hold the appellants in contempt remained in the district court and the master’s recommendations on that subject could not bind the court. The judge did not abuse his discretion by disregarding the master’s conclusion and imposing sanctions for contempt on the appellants.
B. The District Court’s Contempt Order.
Appellants argue that their actions were not contemptuous. They state that (1) exceptional circumstances justified their actions, and (2) MTI had not closed escrow within the thirty days provided for in the plan of reorganization.
1.
The appellants explain that they obtained a commitment from Margaret Elardi to purchase their assets for $690,000 more than MTI had agreed to pay and that these “exceptional circumstances” justified their decision not to transfer the property.
The special master seemed to agree with this “exceptional circumstances” analysis. He stated that “[t]he action of the Debtor in Possession in failing to conclude the sale was motivated by a desire to gain additional monies for its equity security holders and as of this time does not appear to be contemptuous in nature.”
The district court expressed doubts that these “exceptional circumstances” justified disobedience to a court order, particularly in light of its order filed November 8th requiring the sale to close on or before November 16,1984. We agree with the district court. The “exceptional circumstances” offered by the appellants are irrelevant. If a person disobeys a specific and definite court order, he may properly be adjudged in contempt. Shuffler v. Heritage Bank, 720 F.2d 1141, 1146 (9th Cir.1983). “A person fails to act as ordered by the court when he fails to take ‘all the reasonable steps within [his] power to insure compliance with the [court’s] order[ ].’ ” Id. at 1146-47 (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977)). It does not matter what the intent of the appellants was when they disobeyed the court’s order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). Moreover, the contempt need not be willful. Perry v. O’Donnell, 759 F.2d 702, 704-06 (9th Cir.1985). Even though “[t]he sole question is whether a party complied with the district court’s order,” a party can escape contempt by demonstrating that he is unable to comply. Mazzola, 716 F.2d at 1240. That was not the case here. If the appellants believed that the district court incorrectly issued an order, their remedy was to appeal and request a stay pending the appeal. Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975); see also Chapman v. Pacific Telephone and Telegraph Co., 613 F.2d 193, 197 (9th Cir.1979). “Absent a stay, ‘all orders and judgments of courts must be complied with promptly.’ ” Mazzola, 716 F.2d at 1240, (quoting Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975)). Although both Crystal Palace and the shareholders appealed, no stay was obtained. A party cannot disobey a court order and later argue that there were “exceptional circumstances” for doing so. This proposed “good faith” exception to the requirement of obedience to a court order has no basis in law, and we reject the invitation to create such an exception. The appellants were not justified by exceptional circumstances in disobeying the court’s order.
2.
The appellants argue that they were “amply justified” in not executing the necessary documents, since MTI did not close escrow within the thirty days provided for in the plan of reorganization. They assert that MTI should have forfeited the earnest money deposit of $450,000.
This argument is without merit. The sale closed in a timely manner. Both the special master and the district judge found that the parties intended that the running of the thirty-day closing period should begin with the entry of the confirmation order as opposed to the issuance of the confirmation order. This finding is strongly supported by the record.
However, whether the sale closed in a timely manner, whether there were inconsistencies in the documents, whether the district court was correct, or whether the appellants thought they were justified in their legal position, all became irrelevant when the court filed its November 8th order. That order, in no uncertain terms, required Crystal Palace to execute the necessary documents by November 16. Thus, as of November 8, Crystal Palace had no legal justification for not executing the necessary documents. Again, the appellants’ only recourse was to appeal and obtain a stay pending the outcome of that appeal. No stay was obtained and the documents should have been executed. The appellants’ unreasonable subjective beliefs do not provide legal justification for their disobedience of a court order.
C. The District Court’s Actions,
Appellants also argue that the actions of the court caused confusion and that this confusion was the reason they did not comply with the order. In support of this proposition, Crystal Palace points out that the district judge referred two of its motions to the special master, and therefore, the judge apparently felt that these motions were of sufficient importance and complexity to require this reference. We reject the notion, that by referring these issues to a special master, the court somehow implied that the appellants’ motions were meritorious.
Furthermore, the appellants’ actions betray their allegations of confusion. After the district court ordered Crystal Palace to transfer the documents, Crystal Palace filed numerous motions, but not one of those motions requested either clarification or reconsideration of the court’s order. Nor did the appellants seek a stay while they challenged the court’s order on appeal.
Crystal Palace argues that “[wjhile a party is not free to disregard a lawful order of a court, a party may seek clarification of that order.” At the time the appellants decided not to execute the necessary documents, the district court’s order needed no clarification. The November 8th order explicitly stated that the sale must occur “on or before ... November 16, 1984.” If there had been any ambiguity or uncertainty earlier, that ambiguity ceased to exist when the November 8th court order was issued.
D. Sanctions.
The district court properly concluded that the appellants were in contempt of court. As a sanction, the court ordered that the debtor and its shareholders pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.”
In its cross-appeal, MTI argues that the sanctions should include (1) $43,000 in loan fees, (2) the lost use of the purchase price for a two month period, (3) $80,000 in legal fees for “warding off appellants’ various legal attacks on the first order[,j” (4) legal costs in defending the appeal from the district court’s third order, “which this court found meritless and dismissed,” and (5) the two months of lost proceeds it would have otherwise obtained from the operation of the casino.
As we have stated previously, a sanction for “[cjivil contempt is characterized by the court’s desire to ... compensate the contemnor’s adversary for the injuries which result from the noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir.1983). However, an award to an opposing party is limited by that party’s actual loss. United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); Shuffler, 720 F.2d at 1148; Falstaff, 702 F.2d at 779.
We affirm the imposition of sanctions. The award of interest on monies borrowed by MTI to consummate the purchase of the casino was not an abuse of discretion. See Shuffler v. Heritage Bank, 720 F.2d 1141, 1148-49 (9th Cir.1983). However, the amount and nature of the sanctions imposed by the court are unclear.
We remand this case to the district court for a determination of the amount of the sanctions to be awarded and whether the sanctions shall include the loan fees, the lost use of the purchase price, attorney fees or the proceeds earned by the casino.
V
CRYSTAL PALACE’S MOTION TO STRIKE AND MOTION TO RECONSIDER
The appellants have filed a motion to strike portions of the Appellee’s answering brief. They state that a number of matters discussed in that brief are not properly before this court and should not be raised in the answering brief. They further argue that if they made procedural errors, MTI should have objected pursuant to Fed. R.App.P. 27(a) and (b).
Ninth Circuit Rule 13 requires that an opening brief recite the procedural posture of the case, what justification a party has for seeking attorney fees, and whether an appeal is properly before this court. The appellee’s brief did not go beyond the scope of this rule. The motion to strike is denied.
The appellants also urge us to reconsider our August 25 order, in which we denied their motion for an extension of time to file a reply brief. That motion is now moot. However, we note that the reply brief was due August 11, but the order gave the appellants until September 2 to file their brief. Thus, although the order denied an extension of time, the appellants actually received a twenty-two day extension.
VI
ATTORNEY FEES AND COSTS ON APPEAL
MTI argues that it is entitled to compensation for attorneys’ fees, costs, damages and other expenses incurred as a result of this appeal pursuant to Federal Rule of Appellate Procedure 38. Pursuant to Rule 38, a party may be entitled to attorney fees if an appeal is frivolous. We conclude that this appeal is not frivolous, and deny the award of attorney fees. Each party will bear its own costs.
VII
CONCLUSION
The district court properly found the appellants in contempt, and its ruling was not an abuse of discretion. We remand to the district court so it can determine the amount and nature of the sanctions to be imposed on Crystal Palace and its shareholders. The appellants’ motion to strike is denied, and the motion to reconsider is moot.
AFFIRMED AND REMANDED WITH INSTRUCTIONS. EACH PARTY WILL BEAR ITS OWN COSTS.
. Crystal Palace filed the following motions: motion for forfeiture of earnest money deposit, motion to extend time, motion to disqualify counsel, motion to continue hearing to take place on November 16, debtor’s objection to application for order compelling sale of property, motion for an order modifying the debtor’s plan of reorganization, debtor’s modified plan of reorganization, ex parte application for an order requiring MTI to forfeit earnest money deposit, debtor’s first modified plan of reorganization, brief re: rejection of postpetition executory contract.
. Even though the agreement with Elardi was not signed until November 27, the special master found that it was concluded on November 6.
. Although there is a conflict in the terms of several of the documents as to when this thirty-day closing period was supposed to begin running, three of the four documents that discuss this matter: paragraph 4 of the purchase agreement, the confirmation order (both of which were drafted by counsel for Crystal Palace), and article III of the plan of reorganization, all indicate that the transaction was supposed to occur within a period of time after entry of the order as opposed to issuance of the order,
Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_execord
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. 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".
Leydel WILLIS, Appellant, v. WATSON CHAPEL SCHOOL DISTRICT, Appellee, Darryl Messer, President, Dr. Timothy Carter, Jim Johnson, George N. Mays, Levert Blunt, Jr., Individually and as Members of the Watson Chapel School District Board of Directors. Leydel WILLIS, Appellee, v. WATSON CHAPEL SCHOOL DISTRICT, Appellant, Darryl Messer, President, Dr. Timothy Carter, Jim Johnson, George N. Mays, Levert Blunt, Jr., Individually and as Members of the Watson Chapel School District Board of Directors.
Nos. 88-2868, 89-1012.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 15, 1989.
Decided April 2, 1990.
Jeremiah A. Collins, Washington, D.C., for appellant.
Michael J. Dennis, Pine Bluff, Ark., for appellee.
Before FAGG, Circuit Judge, FLOYD R. GIBSON, and BRIGHT, Senior Circuit Judges.
FAGG, Circuit Judge.
Watson Chapel School District (the School) and Leydel Willis both appeal from adverse decisions by the district court. 703 F.Supp. 1381 (E.D.Ark.1988). We affirm the district court’s decision that the School intentionally discriminated against Willis because of her sex, but we reverse the court’s ruling denying Willis back pay and front pay.
Leydel Willis has taught business education in the Watson Chapel School District for over twenty-five years. She is certified in Arkansas as a business and vocational education teacher and as a secondary school principal. Between 1983 and 1988, the School hired eight male administrators for its junior and senior high schools. Willis applied for all eight positions, and each time the School rejected her. The district court found the School refused to hire Willis because she was a woman, see 42 U.S.C. § 2000e-2 (1982), and ordered the School to appoint Willis to the next available secondary administrative position.
The School contends, however, the district court committed error by using disparate impact analysis to decide Willis’s intentional discrimination claim. To support reversal of the district court, the School asks us to lift isolated passages from the court’s opinion and read them out of context. This argument is without merit.
It is clear from the record that the district court applied the disparate treatment framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Bur-dine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), made a factual inquiry into “which party’s explanation of the [School’s] motivation it believe[d],” United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); see also Henderson v. City of Mexico, 798 F.2d 320, 322-23 (8th Cir.1986), and decided the School intentionally discriminated against Willis. Craft v. Me- tromedia, Inc., 766 F.2d 1205, 1211 (8th Cir.1985), cert. denied, 475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986).
The district court observed that m four instances the superintendent “preferred a male without prior administrative experience over a female without prior administrative experience,” and the superintendent credited the male candidates with “[ ]leadership,[ ] [ lability,[ ] and [ ]stability[ ]” even though their experiences and credentials were similar or inferi- or to Willis’s. On another occasion, the superintendent told a school board member he was “le[e]ry of females” in the junior high principal position, but the superintendent later acknowledged Willis was better qualified than the man he recommended. The record amply supports the district court’s determination that the reasons the School gave for failing to promote Willis were pretextual in at least four instances. In our view, the court’s finding of intentional sex discrimination is not clearly erroneous. Id. at 1211-12.
Turning to Willis s appeal, she contends the district court committed error in failing to award her back pay and front pay. The court concluded that “[bjecause of the numerous positions involved [] and the varying salaries of each position, it would be impossible to calculate compensatory damages.” We disagree. Mere difficulty in calculating damages is not sufficient reason to deny relief. See Kirby v. Colony Furniture Co., 613 F.2d 696, 699-700 (8th Cir.1980).
Although Willis was denied promotion to eight different positions, the School’s salary scale should provide the district court with adequate guidance to calculate Willis’s compensation. Any ambiguities in the amount of salary owed Willis should be resolved against the School. Henry v. Lennox Indus., 768 F.2d 746, 753 (6th Cir. 1985); Horn v. Duke Homes, 755 F.2d 599, 607 (7th Cir.1985). We thus remand the case for computation of Willis’s back and front pay award. Willis, of course, bears the burden of proving her pecuniary losses on remand. See id. at 606.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Question: Did the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
FITCH v. COMMISSIONER OF INTERNAL REVENUE.
No. 11306.
Circuit Court of Appeals, Eighth Circuit.
April 25, 1939.
A. F. Schaetzle, of Des Moines, Iowa, for petitioner.
Louise Foster, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief) for respondent.
William D. Mitchell, of New York City, Harold B. Tanner, of Providence, R. ,1., and Rollin Browne, of New York City, amici curise.
Before GARDNER and WOOD-ROUGH, Circuit Judges, and OTIS, District Judge.
GARDNER, Circuit Judge.
This case is before us on petition for review of a decision of the United States Board of Tax Appeals determining a deficiency in income taxes against the petitioner for the year 1933, in the sum of $1,-555.58. The facts were stipulated, and hence, are not in dispute.
Petitioner, a resident of Des Moines; Iowa, is the divorced husband of Lettie S. Fitch, to whom he was married in 1892. They lived together as husband and wife until 1917, at which time they separated. On December 27, 1922, Lettie S. Fitch filed a suit for separate maintenance against petitioner. This suit was dismissed on April 7, 1923, after the parties had agreed upon a settlement. In accordance with the settlement, petitioner leased certain premises owned by him to the F. W. Fitch Company for ninety-nine years, at an annual rental of $12,000, and on April 23, 1923, joined his wife and the Bankers Trust Company as trustee, in the execution of a trust agreement, under which the trustee took title to the premises and an assignment of the lease to collect the rents and, after deduction of expenses, to pay to Lettie S. Fitch $600 a month during her life, and the balance of the annual income to the petitioner during his life. Provision was made further for the duration of the trust during the lifetime of both petitioner and Lettie S. Fitch and in any case for at least fifteen years, and for distribution of the income to the children of petitioner and his wife in case either should die prior to the termination of the minimum period. Petitioner irrevocably alienated the corpus, as well as any right to receive $600 per month provided for Lettie S. Fitch in favor of her and the children. Provision was made that upon the termination of the trust period, the corpus should be paid over to the children or their lineal descendants.
On April 14, 1925, Lettie S. Fitch filed a suit for divorce against petitioner in the District Court of Polk County, Iowa, alleging cruelty, desertion and failure to provide for her and a minor child in a proper manner. In his answer, petitioner alleged inter alia, that he had created the above described trust for her benefit in settlement of the prior suit for maintenance and that “She is now and was receiving this $600.-00 per month at the time she filed her petition herein, claiming that the defendant had failed to provide for her and for the minor child in a proper manner,” and that “This constituted and now constitutes a full and complete settlement and gives to the plaintiff an amount in excess of what she is in equity entitled to, and the plaintiff, at the time orally agreed with the defendant that the amount given her was sufficient for all time, and that plaintiff and defendant should go their respective ways without interference with each other.” On December 17, 1925, the court entered a decree, granting the wife an absolute divorce and the custody of the minor son, and further adjudging, “That the trust agreement which is referred to in the defendant’s answer * * * be, and the same is hereby ratified and confirmed by the court; and that the property and alimony settlement made' by the parties be, and it is hereby confirmed by the court.”
Pursuant to this decree, petitioner transferred to Lettie S. Fitch 600 common shares of the F. W. Fitch Company, which, on December 31, 1925, had a book value of $77,959.80, and paid to her attorney the sum of $23,500, of which she received $8,-500, the balance representing counsel fees and expenses.
During 1933, the trustee under the trust above described, distributed to Lettie S. Fitch $7,128, which the commissioner included in petitioner’s taxable income. As forecast, the board upheld the commissioner, and the case is here on petition to review. It is the contention of petitioner: (1) That the trust agreement resulted in the conveyance of an irrevocable life interest to his former wife in discharge of his marital obligation; (2) that this in effect constituted a lump sum settlement made in connection with divorce proceedings; (3) that by reason of the execution of this trust agreement and its adoption and confirmation by the court, the petitioner was under no legal obligation or liability for the support of his divorced wife during the tax year in question, and hence, the income received by his wife was not taxable to him.
Whether or not petitioner was under any legal liability for the support of his wife during the tax year depends upon the construction to be given the contract and the effect of the decree under the laws of the State of Iowa. The jurisdiction of the Iowa court in the divorce proceeding is not questioned. The provisions of the Code of Iowa relative to alimony are as follows:
“Section 10480. Showing. In making such orders [i. e. reference to maintenance during litigation and attachment], the court or judge shall take into consideration the age and sex of the plaintiff, the physical and pecuniary condition of the parties, and such other matters as are pertinent, which may be shown by affidavits, in addition to the pleadings or otherwise, as the court or judge may direct.”
“Section 10481. Alimony — Custody of children — changes. When a- divorce is decreed, the court may make such order in relation of the children, property, parties, and the maintenance of the parties as shall be right.”
In the instant case; the parties settled their property rights out of court and this settlement was confirmed in the court’s decree. Under this settlement there' were transferred to Lettie S. Fitch 600 shares of the common stock of the F. W. Fitch Company, having a book value of $77,959.80, and there was paid to her attorney the sum of $23,500. In addition to this, she was given a life interest in the trust property to the extent of $600 per month, less administration expenses. She had previously received from her husband a home which he purchased for her in 1919, furnishings for said home, and an automobile. At the time of the granting of the absolute divorce she, therefore, had this separate property, and under these circumstances a lump sum settlement was made by which she acquired the above described stock and cash to the amount of $23,500. When, therefore, the decree of absolute divorce was entered, the obligation for further support was discharged. Kraft v. Kraft, 193 Iowa 602, 187 N.W. 449; Spain v. Spain, 177 Iowa 249, 158 N.W. 529, L.R.A.1917D, 319, Ann.Cas.1918E, 1225; Barish v. Barish, 190 Iowa 493, 180 NW. 724; Carr v. Carr, 185 Iowa 1205, 171 N. W. 785; McCoy v. McCoy, 191 Iowa 973, 183 N.W. 377.
In Kraft v. Kraft, supra, the court, among, other. things, said [193 Iowa 602, 187 N.W. 451] : “The effect of the decree was, we think, so far as defendant is concerned, to award her a lump sum out of her husband’s estate. We held in Spain v. Spain, 177 Iowa 249, 158 N.W. 529, L.R. A.1917D, 319, Ann.Cas.1918E, 1225, that the court has no inherent power to modify a decree of divorce as regards alimony, nor power to so modify, except for such fraud or mistake as would justify a modification or change of any judgment, and that a decree of divorce silent as to any alimony cannot thereafter be so modified as to provide for alimony, even though there is a showing of changé in financial condition.”
In McCoy v. McCoy, supra, in an opinion by Chief Justice Evans, it was said [191 Iowa 973, 183 N.W. 378] : “The general ground upon which these holdings are based was that alimony is an incident of the marriage relation; that it can only be allowed where the marriage relation exists; that it may be allowed as a part of the decree of divorce; that the severance of the marriage relation by absolute decree without alimony terminates the right to alimony.”
We think the right to further alimony was absolutely precluded by the decree of divorce which dissolved the marriage status, and hence, removed the duty or obligation of the petitioner further to support his former wife.
The general rules for the taxation of trust income are to be found in Sections 161, 162, 166 and 167 of the Revenue Act of 1932, 26 U.S.C.A. §§ 161, 162, 166, 167. Under these provisions the trust is treated as a taxable entity. The trustee is subjected to tax on the net income computed on the same basis as in the case of an individual, except that a deduction is allowed for all income distributed or distributable to the beneficiaries, who -are required to include the amount so distributed to them in computing their own income. We are of the view that Lettie S. Fitch is a true trust income beneficiary and as such liable to the income tax thereon. Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 69 L.Ed. 897; Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465.
In the instant case, it is contended that under the doctrine of Douglas v. Willcuts, 296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3, 101 A.L.R. 391, the income from this trust going to petitioner’s divorced wife was taxable to him, but we think the case is readily distinguishable. It was held in that case that there was a continuing obligation of the trust grantor to the beneficiary of the trust and that the income of the trust was merely used to satisfy that obligation. There is, of course, no doubt as to the soundness of this principle. Otherwise, a debtor could evade income taxes by the simple device of creating trusts with directions to apply the income to the payment of his obligations. But here, as we have seen, there was no continuing obligation to petitioner’s divorced wife, and neither by the decree nor the statutory provisions of Iowa, was there any legal liability for support. Confessedly, there was such an obligation up to the time of entry of decree, but this was extinguished when the absolute decree of divorce was entered. It is to be observed that under the trust agreement the annual distribution made to petitioner’s divorced wife was the trust income and nothing but trust income. In other words, she vras not entitled to a fixed amount per annum, payable out .of trust income, with deficiencies to be made up out of the corpus or otherwise. In the Douglas case, the legal liability to his wife continued throughout the tax year because he expressly agreed that if the trust income should fall below $15,-000 in any year, he would make up the deficiency, and the divorce decree confirmed that liability. In addition to this, the law of Minnesota continued his liability for the support of his divorced wife and vested a continuing jurisdiction in the courts to supervise and revise both the decree and the trust agreement to that end. So, too, in Llelvering v. Lucy Blumenthal, 296 U.S. 552, 56 S.Ct. 305, 80 L.Ed. 390, relied upon by the commissioner, the grantor remained personally liable for the bank loan, to the satisfaction of which the trust income was directed to be devoted. In Helvering v. Schweitzer, 296 U.S. 551, 56 S. Ct. 304, 80 L.Ed. 389, and Helvering v. Stokes, 296 U.S. 551, 56 S.Ct. 308, 80- L. Ed. 889, there was a continuing liability in the grantors not superseded by the trusts involved. In Commissioner v. Hyde, 2 Cir., 82 F.2d 174, and Glendinning v. Commissioner, 3 Cir., 97 F.2d 51, the grantors were held liable by reason of their express agreements to make up deficiencies in the trust income. In Helvering v. Coxey, 297 U.S. 694, 56 S.Ct. 498, 80 L.Ed. 986, a divorce had been granted under the laws of New Jersey, and under those laws the husband was obligated to support his wife even after divorce. N.J.Rev.Statutes, 2:-50-37; McKensey v. McKensey, 65 N.J. Eq. 633, 55 A. 1073; Greenberg v. Greenberg, 99 N.J.Eq. 461, 133 A. 768. The conflict in the decisions is apparent, rather than real.
The case of Helvering v. Brooks, 2 Cir., 82 F.2d 173, is strongly relied upon as sustaining the decision of the Board of Tax Appeals in the instant case, but the Brooks case arose in the State of Florida, and under the law of that state the husband remained liable for the support of his divorced wife, and the court retained jurisdiction over the matter, with the power at any time by supplemental decree to alter the provisions of the trust agreement with respect to the wife’s support. So, too, in Alsop v. Commissioner, 3 Cir., 92 F.2d 148, the grantor remained liable to his divorced wife during the tax year, by reason of an express agreement to make up deficiencies in the trust income so as to assure her receiving a fixed amount each year. In the instant case, however, there was absolutely no continuing obligation on the part of the petitioner for the support and maintenance of his divorced wife.
The facts in Commissioner v. Tuttle, 6 Cir., 89 F.2d 112, 114, are analogous to those in the instant case. It was there insisted that under the doctrine of Douglas v. Willcuts, the husband was liable to income tax arising from a trust for his divorced wife .pursuant to settlement agreement made in contemplation of divorce. In the course of that opinion it is, among other things, said: “Careful consideration of Douglas v. Willcuts leads to the conclusion that decision was based on the fact that the income of the trust estate was alimony under the provisions of the Minnesota statute and the terms of the decree. By the statutes' of Minnesota' the court is, empowered upon divorce to decree part of the husband’s estate to the wife, and also such alimony as it may deem just and reasonable. * * * It may from time to time revise and alter the decree with respect to the alimony or allowance, and also with respect to the appropriation and payment of principal and interest of property held in trust, and in exercising this authority it is not precluded by stipulations and agreements of the parties.”
The court proceeds to say that:
“Under Michigan law, however, parties to a divorce action may enter into a property settlement by which, in the absence of fraud, duress or mutual mistake they will be bound. * * ' *
“It was competent for the parties to enter into the terms of a settlement agreement in contemplation of divorce. Such agreement is recognized as final and conclusive between the parties in the absence of fraud, duress, or mistake, and its efficacy as well as its finality springs not from the order of the court but from the consent of the contracting parties. It may not thereafter be amended or revised by the court. * * *
“It cannot be doubted that in making a settlement with his wife in contemplation of divorce under Michigan law the, respondent might have paid her a lump sum in money, or deeded' to her certain property. The rentals from such property, or the return on the money if invested, would be her income and not his. Or he might have settled upon her a life estate in property. Its income would not thereafter be his income. If he had bought for her an annuity, its avails would likewise be her income. We are unable to distinguish from these- examples an irrevocable assignment for life without limitation or restraint of the total income of specified securities.
“Another important distinction between the present case and Douglas v. Willcuts, • supra, is this: The settlement there provided for a specified payment in money through the trustee to the wife. Payment was secured by the transfer of securities in trust. The transfer was but for security, however, since deficiencies were to be made up by the settlor and excess income was to be paid to him. Finality was not achieved by the agreement. Here the transfer, so far as it operates, is absolute. There is no guaranty of return, no obligation to make up deficiency, no reservation of excess income, no right retained to change or substitute securities. The wife definitely and finally accepted the income from a certain amount of property, whatever it might prove to be, in settlement of her claims to dower and other rights. There remained no continuing obligation on the part of the respondent for support and maintenance, no debt to be paid out of his income, either actually or constructively. Upon the creation of the trust the trustor’s obligations to his wife under both the contract and the decree were fully and finally liquidated.”
We are in accord with these views as applied to the facts and issues in this case. The decision of the Board of Tax Appeals is therefore reversed and the cause is remanded for further proceedings consistent herewith.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appel2_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Paul JENSEN and Ruby Jensen, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 79-2181.
United States Court of Appeals, Tenth Circuit.
Submitted May 15, 1981.
Decided Oct. 23, 1981.
Vance H. ■ Fried of Wheatley & Fried, Stillwater, Okl., for plaintiffs-appellants.
Larry D. Patton, U. S. Atty., and John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., for defendant-appellee.
Before McWILLIAMS, BARRETT, and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Plaintiffs Paul and Ruby Jensen brought this action against the United States (“the Government”) alleging that it improperly denied their claim for homeowner relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq. (“URA” or “the Act”). The Government, after acquiring plaintiffs’ property for use in a major public works project, awarded plaintiffs only the limited tenant relocation benefits available under URA section 204, 42 U.S.C. § 4624. Plaintiffs had sought the more comprehensive homeowner relocation benefits authorized hy URA section 208, 42 U.S.C. § 4623. Both parties moved for summary judgment in the trial court. The court granted the Government’s motion, and plaintiffs have appealed that decision.
Plaintiffs challenge the trial court’s judgment on two alternative grounds. First, plaintiffs assert that section 203 applies in their situation and entitles them to homeowner relocation benefits as a matter of law. Second, plaintiffs contend that equity demands they be awarded the homeowner relocation benefits available under section 203 even if that section is held inapplicable to their situation. This latter argument is primarily bottomed upon representations allegedly made by the Government to the plaintiffs indicating that plaintiffs would receive such benefits.
We hold that section 203 is inapplicable to plaintiffs’ case. However, because material questions of fact are in dispute with respect to the Government’s contrary representations and plaintiffs’ reliance upon those representations, we reverse the trial court’s ruling insofar as it grants summary judgment.
I.
FACTUAL BACKGROUND
The facts underlying this litigation may be easily summarized. The Government, acting through the United States Army Corps of Engineers (“the Corps”), condemned portions of north central Oklahoma to allow for the creation of the Kaw Reservoir. Plaintiffs’ home was located in a condemned area and title to their home was acquired by the Government on November 17, 1969. The Corps permitted plaintiffs to occupy their former home as tenants or “priority lessees” until April 17, 1974. At that time, actual construction on the reservoir began and plaintiffs moved from the property. Plaintiffs learned that they would be paid relocation benefits from the Government as a result of its activities.
This lawsuit ensued because of the parties’ disagreement over the type of relocation benefits due the plaintiffs. The Government ultimately awarded plaintiffs only the tenant relocation benefits described in section 204, rather than the more substantial homeowner relocation benefits authorized by section 203 of the Act.
The above-described disagreement developed as a result of the temporal sequence of various events relevant to this case. The URA became effective on January 2,. 1971, subsequent to the Government’s acquisition of title to plaintiffs’ home but prior to plaintiffs’ actual move from the property. Consequently, it was necessary for the Government to decide whether section 203 authorized the payment of homeowner relocation benefits to an owner whose property was acquired before the Act when the owner continued in possession of that property as a tenant after the Act became effective.
The Corps initially determined that such individuals were entitled to the homeowner relocation benefits. The Government has conceded that it adopted this position after the Act became operative and that in early June 1972, it informed the plaintiffs they would receive homeowner relocation benefits. Significantly, plaintiff Paul Jensen stated in an affidavit that “prior to April 28, 1971, he became familiar with the position of the Corps of Engineers that a ‘priority lessee’ still in possession of his property on January 2, 1971, was to be treated as an owner under Section 203.” Rec., vol. I, at 31. Further, in that same affidavit Jensen alleged “that the purchase of the lots in Kildare and the entering into of the contract to move his Uncas home were made in reliance upon .. . the Corps of Engineers’ policy regarding treatment of priority lessees.” Id.
Sometime after these events, the Government reversed its stand on the availability of section 203 homeowner relocation benefits to individuals in plaintiffs’ position. This change in policy was formalized in a 1972 ruling of the Comptroller General of the United States. Decision of the Comptroller General of the United States, B— 148044, 52 Comp.Gen. 300 (1972). However, the Government concedes that “the Corps has paid Section 203 benefits to other priority lessees and that it has adopted a policy of granting Section 203 [benefits] in cases where financial obligations have [been] incurred as a result of reliance upon oral or written Corps commitments for payment of relocation benefits . . . . ” Appellee’s Brief, at 10.. Nonetheless, the Government paid only section 204 tenant relocation benefits to plaintiffs.
II.
ISSUES
A. Construction of the Act
We must first determine whether section 203 authorizes the payment of homeowner relocation benefits where an owner whose property was acquired before the Act continued in possession as a tenant after the Act became effective. We conclude that section 203 does not authorize the payment of homeowner benefits under such circumstances. Our decision is based upon a reading of the relevant provisions of the Act, an application of traditional principles of statutory construction, and a review of the legislative history of the URA.
Section 203 provides for the payment of homeowner relocation benefits to
“any displaced person[] who is displaced from a dwelling actually owned or occupied by such displaced person for not less than one hundred and eighty days prior to the initiation of negotiations for the acquisition of the property.”
42 U.S.C. § 4623(a)(1).
The parties construe this language in radically different ways. The Government asserts that the plaintiffs are not entitled to homeowner relocation beiiefits because they were not owners when the Act authorizing those entitlements was passed. The Government’s position is set forth in Decision of the Comptroller General of the United States, B-148044, 52 Comp.Gen. 300 (1972), as well as in a regulation of the Corps issued on May 23, 1973. The Corps’ regulation states that “[n]o benefits shall be paid under section 203 to any person whose property was acquired prior to January 2, 1971.” U. S. Army Corps of Engineers Regulation of May 23, 1973, § 641.9. Plaintiffs, on the other hand, contend that ownership as of the Act’s effective date is not a prerequisite to the receipt of homeowner relocation benefits. They argue that section 203 benefits are to be provided to all individuals (i) who are displaced persons and (ii) who owned and occupied their dwelling for more than one hundred and eighty days prior to the initiation of negotiations for its acquisition. Plaintiffs urge that when these two requirements are met, moving after the effective date of the Act generates homeowner relocation benefits.
While neither parties’ reading of section 203 appears facially unreasonable, we hold that the Government’s view is controlling. Two general principles of statutory construction buttress our conclusion. First, the Comptroller General’s and the Corps’ interpretation of section 203 is entitled to “great deference” because those agencies are charged with the administration of the Act. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102-03, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973). Second, plaintiffs’ interpretation should be avoided because it creates the specter of unwarranted retroactive application of the Act. Persons whose property was acquired prior to the URA’s enactment cannot be considered owners under section 203 since the Act was nonexistent at the time their property was sold. When such individuals remain in temporary possession of their former homes, it is only as priority lessees or tenants. Consequently, payment of section 203 homeowner relocation benefits to persons whose temporary possession continues beyond the date of the URA’s enactment arguably constitutes retroactive application of the Act. Normally, retroactive application of legislative acts is impermissible absent a clear indication of congressional intent. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 564, 82 L.Ed. 858 (1938). Our review of the legislative history of the URA reveals that no retroactive application of the Act was contemplated by Congress.
The legislative history of the URA indicates that section 203 is inapplicable to plaintiffs’ situation for an additional reason. Congressional comments state that the Act builds upon the Federal-Aid Highway Act of 1968, 23 U.S.C. § 506 et seq. (“Highway Act”). See H.R.Rep.No. 1656, 91st Cong., 2d Sess. 8, reprinted in [1970] U.S.Code Cong. & Ad.News 5850, 5857. Significantly, in Taliaferro v. Stafseth, 455 F.2d 207 (6th Cir. 1972), the court held that under a Highway Act provision similar to section 203, a person whose property was acquired prior to the effective date of the Highway Act but who did not vacate until after that date was not entitled to the benefits afforded displaced owners.
Plaintiffs assert that the legislative history of URA section 219, 84 Stat. 1903 (1971), demonstrates that homeowner relocation benefits can properly be paid to individuals whose homes were acquired before the Act’s effective date. Plaintiffs seize upon the eloquent pleas of an able New York congressman as support for this claim. However, section 219 provides only the limited tenant relocation benefits to a geographically restricted group of individuals whose property was acquired before the date of the Act and who moved no later than ninety days after the Act. This provision was clearly the result of effective lobbying on the part of the congressman and is “not to be considered as a precedent of any nature.” H.R.Rep.No. 1656, 91st Cong., 2d Sess. 3, reprinted in [1970] U.S.Code Cong. & Ad.News 5850, 5870. Plaintiffs reliance on section 219 is misplaced.
In sum, the administrative interpretation of section 203 to preclude coverage under the circumstances of this case is neither arbitrary, capricious, nor plainly inconsistent with the URA. See Lowell v. Secretary of HUD, 446 F.Supp. 859, 863-65 (N.D.Cal. 1977).
B. Grant of Summary Judgment
While the prerequisites for section 203 homeowner relocation benefits are not met in plaintiffs’ case, we hold that material questions of fact remain in dispute with respect to the Government’s contrary representations and plaintiffs’ reliance thereon. Accordingly, the decision of the trial court granting summary judgment must be reversed.
In reviewing a motion for summary judgment, this court must consider the evidence in the light most favorable to the party opposing the motion, in this case the plaintiffs. Romero v. Union Pacific Railroad, 615 F.2d 1303, 1309 (10th Cir. 1980); Madison v. Deseret Livestock Co., 574 F.2d 1027, 1036 (10th Cir. 1978). Particularly, the party opposing the motion is entitled to have his affidavits generously construed. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2738 at 708 (1973).
Plaintiffs contend that it is the current policy of the Government to pay section 203 benefits where financial obligations have been incurred in reliance upon the Government’s representations. The Government does not dispute that contention on appeal but argues instead that plaintiffs have not demonstrated such reliance. We believe, however, that plaintiffs raised an issue of fact on this question sufficient to preclude summary judgment. Thus, plaintiff’s affidavit states that he learned of the Government’s policy authorizing section 203 homeowner relocation benefits to individuals in plaintiffs’ position and relied on that policy by buying lots and contracting to have his home moved. That affidavit indicates that this representation and reliance occurred prior to the Government’s ultimate determination that such benefits would not be available to plaintiffs.
We, of course, express no opinion on whether the facts, if true, entitle plaintiffs to relief. It is for the district court on remand to determine whether plaintiffs are entitled to any recovery on the representation-reliance dispute.
Reversed and remanded for further proceedings in accordance with this opinion.
. Prior to January 2, 1971, reimbursement of relocation expenses was provided by the Resettlement Act, 10 U.S.C. § 2680 (repealed 1971).
. This is a case of first impression at the circuit court level. Moreover, the URA is of such recent vintage that it appears only one district court has considered this particular issue. See Bourne v. Schlesinger, 426 F.Supp. 1025 (E.D. Pa. 1977).
. “Displaced person” is defined in section 101, 42 U.S.C. § 4601. Neither party has disputed that plaintiffs fall within the purview of that term.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_state
|
56
|
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".
SUN OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 18566.
United States Court of Appeals Fifth Circuit.
Feb. 15, 1961.
Herf M. Weinert, Beaumont, Tex., Robert E. May, Washington, D. C., for appellant.
John C. Mason, Gen. Counsel, F. P. C., Howard E. Wahrenbrock, Sol., Washington, D. C., for appellee.
Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges.
PER CURIAM.
The Federal Power Commission has filed its motion to dismiss the Petition for Review filed by Sun Oil Company. Its Petition for Review seeks to have this Court set aside two orders of the Federal Power Commission, one issued June 2, 1960 and the other issued July 15, 1960. The proceedings that were before the Commission and which were dealt with by the said orders were in docket Nos. G-13617, G-13619, G-16685, and G — 16686.
The motion to dismiss is based on the ground that the orders appealed from are not final orders of the Commission and thus are not subject to review. Briefly stated, the orders denied motions made by the petitioner that the Commission terminate the proceedings then pending in the docket numbers referred to. The state of the proceedings at the time was that several increases in rates had been filed by Sun and had been suspended under Section 4(e) of the Natural Gas Act, 15 U.S.C.A. § 717c(e), and Sun was collecting the higher rates under the undertaking to make refunds if the rates were not ultimately approved. Proof had already been taken under the Section 4(e) proceeding, but the investigation had not been completed. The basis of Sun’s motion to terminate was its contention that the Commission had terminated other proceedings in like situations, and Sun contended that “It was manifestly unfair and discriminatory for the Commission to terminate suspension proceedings involving other independent producers, even though general rate proceedings had been instituted and some were being heard, * * * ” and to refuse at the same time to terminate Sun’s proceedings under identical circumstances.
This effort to cause the Commission to terminate proceedings during the investigation period and the Commission’s refusal to do so, of course, deals with an interlocutory or non-final issue. Sun may still obtain all the benefits it seeks if the Commission’s proceedings are permitted to go to a normal conclusion. The Commission’s refusal to abort the proceedings is not a reviewable order under the clear authority of Magnolia. Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, and associated cases.
In order to conserve the time, expense and energies of both parties we deem it appropriate to dispose of this motion summarily, rather than to delay its consideration until the case would otherwise be reached in its normal place on the calendar.
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_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Michael W. HURLEY, Plaintiff-Appellant, v. PATAPSCO & BACK RIVERS RAILROAD COMPANY, a body corporate, Defendant-Appellee.
No. 89-2909.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1989.
Decided Nov. 1, 1989.
Gerald Francis Gay (Herbert J. Arnold, Arnold, Beauchemin & Tingle, P.A., Baltimore, Md., on brief), for plaintiff-appellant.
Rudolph Lee Rose (Robert T. Franklin, P. Matthew Darby, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for defendant-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WIDENER and CHAPMAN, Circuit Judges.
PER CURIAM:
The questions presented are whether the district court erred in granting appellee’s motion for a directed verdict at the end of appellant’s case and in granting appellee’s motion in limine to exclude certain evidence. We find no error, and accordingly affirm.
I.
Appellant Michael W. Hurley has been employed by appellee railroad company since July 7,1974, as an expert machinist in the Locomotive Repair Shop. Prior to this employment, he completed a four year apprenticeship program involving 8,000 hours of training. Appellant is the only employee in the shop who is qualified to operate the Reed-Prentice lathe. As such, appellant manages his own schedule and determines how each lathe job will be set up. He conducts his own inspections of the lathe and is responsible for ensuring that it is safe to operate.
On October 21, 1985, appellant began using the lathe to file down a sheave, a piece of equipment designed to hold multiple fan belts. As was his standard practice, appellant secured the sheave in the lathe with a C-clamp. Because he was cold, he wore a loose-fitting sweater he had brought from home. At approximately 8:50 a.m., he “leaned in to file the burrs off the sheave.” Testimony of Michael W. Hurley, Joint Appendix (“J.A.”) at 67. His sweater was caught on the C-clamp, and appellant was pulled into the lathe. He suffered a collapsed right lung, left rib fractures, and a fractured left scapula.
Appellant brought this action in the District of Maryland pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. Prior to trial, the district court granted appellee’s motion in limine and excluded all evidence concerning alternative designs for the lathe, including alternative guarding procedures. Thus, appellant was precluded from presenting evidence that other lathes on appellee’s premises were equipped with guards over the clamp.
The case was tried to a jury on November 30 and December 1, 1988. Appellant’s primary contention at trial was that appel-lee provided inadequate lighting and that this negligence caused appellant’s injuries. The Reed-Prentice lathe receives light from two sources: a series of overhead lucalux lights and daylight through a large bank of windows eight to ten feet from the lathe. Unlike some of the other machines in the shop, the Reed-Prentice lathe did not have an individual fluorescent light.
Appellant testified that the windows were dirty and had not been cleaned for years. Appellant also testified that, as a result of the poor lighting, his body cast a shadow over the lower part of the lathe and that there was no direct illumination at the point where his sweater was pulled into the lathe. He further testified that he had requested individual lighting for the Reed-Prentice lathe four or five years before the accident. He never repeated this request.
At the close of appellant’s case, appellee moved for a directed verdict pursuant to Fed.R.Civ.P. 50(a). During argument on this motion, the district court judge repeatedly asked appellant’s counsel to indicate what evidence there was of negligence by appellee. See J.A. at 133-135, 152, 164. After argument, the court granted appel-lee’s motion. The court emphasized appellant’s status as a highly trained employee with exclusive responsibility for the safe operation of the Reed-Prentice lathe. The court also found that a four or five year old request for direct lighting was not legally sufficient evidence to support an inadequate lighting claim. The court concluded that the evidence left no doubt that appel-lee was not negligent and that appellant was solely responsible for the accident.
II.
An FELA claim must survive a motion for a directed verdict and proceed to the jury if “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). But the plaintiff still has the burden of proving some act of negligence by the railroad. See Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198 (1959); Ambold v. Seaboard Air Line R.R. Co., 345 F.2d 30, 33 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965). Even viewing the facts in the light most favorable to appellant, we cannot find any legally sufficient evidence of appellee’s alleged negligence.
Appellant operated the Reed-Prentice lathe under these lighting conditions without incident for many years before the accident. Although he once requested direct lighting, he did not consider the request important enough to mention again. Appellant was the only employee qualified to operate the Reed-Prentice lathe. Without notice from appellant as to possibly dangerous conditions not evident to a layperson, appellee had no opportunity to correct these conditions and cannot be found negligent. Cf. Inman, supra, 361 U.S. at 140, 80 S.Ct. at 243 (considering the absence of similar accidents in the past and the absence of complaints about the allegedly dangerous conditions probative of an absence of negligence by the railroad).
The only evidence appellant presented in support of his inadequate lighting claim was his own testimony and three photographs taken in the repair shop on October 21, 1985. The district court found that the jury could not discern from the photographs the amount of light in the repair shop generally or at the Reed-Prentice lathe. See J.A. at 165. Even if the amount of light were discernible from the photographs, appellant presented no evidence that the light was inadequate for safe operation of the lathe. He did not, for example, present the testimony of an expert witness regarding the proper lighting conditions for safe operation of a Reed-Prentice lathe. His own conclusory assertions that the lighting was inadequate are not sufficient to survive a motion for a directed verdict. Appellant’s evidence in this case was such that the jury could have reached a verdict in his favor only by speculating. As such, the district court’s granting of appellee’s motion for a directed verdict was proper and must be affirmed. See Kuberski v. New York Central R.R. Co., 359 F.2d 90, 92 (2d Cir.1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967).
Furthermore, appellant never provided an evidentiary link between the allegedly inadequate lighting and his accident. He presented no evidence as to why the lighting in the repair shop made operation of the lathe dangerous or how direct lighting could have prevented this accident. Indeed, appellant testified that he had worked the 3:00 p.m. to 11:00 p.m. shift and had never had a similar accident, in spite of the lack of any natural illumination from the windows after sundown.
Given the evidence presented, the district court properly concluded that plaintiffs negligence was the sole proximate cause of the accident. Appellant was injured because he wore a loose-fitting sweater and “leaned in” too close to the lathe. Absent speculation, no act or omission of appellee can be said to have played any role in causing appellant’s injuries. When an employee’s own negligence is the sole proximate cause of his injuries, the employer cannot be found liable pursuant to FELA. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944); Barnett v. Terminal R.R. Assoc. of St. Louis, 228 F.2d 756 (8th Cir.), cert. denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476 (1956). Thus, the district court properly granted appellee’s motion for a directed verdict.
III.
Appellant contends that the district court erred in excluding testimony by appellant that he observed guards covering the rotating machine chuck on another lathe in another machine shop on appellee’s premises. In support of this contention, appellant notes Eggert v. Norfolk & Western Ry. Co., 538 F.2d 509 (2d Cir.1976). In Eggert, the plaintiff fell and struck his knee on a brake valve lever. The court held that “evidence of the practices of other railroads with respect to brake valve guards is highly relevant since the existence of alternatives would be significant on the issue of whether defendants acted reasonably in the present case.” Id. at 512.
The significance of such evidence, however, is directly related to the similarity between the two situations being compared. In this case, plaintiff was the only employee qualified to operate the Reed-Prentice lathe. That lathe was unlike any other lathe operated on appellee’s premises. Absent some evidence of similarity between the lathe observed with a guard and the Reed-Prentice lathe, evidence with respect to the guarded lathe is irrelevant to the issue of appellee’s negligence. Without additional evidence, appellant would be asking the jury to speculate that, because a different lathe had a guard, appellee should have provided a guard for the Reed-Prentice lathe. The district court properly excluded this unsupported and speculative testimony.
IV.
We think the district court correctly granted appellee’s motion to exclude evidence of guards on other lathes and appel-lee’s motion for a directed verdict at the end of appellant’s case. The judgment of the district 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:
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sc_decisiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED PUBLIC WORKERS OF AMERICA (C. I. O.) et al. v. MITCHELL et al.
No. 20.
Argued December 3, 1945. Reargued October 17, 1946.
Decided February 10, 1947.
Lee Pressman argued the cause for appellants. With him on the brief were Frank Donner and Milton V. Freeman.
Ralph F. Fuchs argued the cause for appellees. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett, David L. Kreeger and Abraham J. Harris.
Mr. Justice Reed
delivered the opinion of the Court.
The Hatch Act, enacted in 1940, declares unlawful certain specified political activities of federal employees. Section 9 forbids officers and employees in the executive branch of the Federal Government, with exceptions, from taking “any active part in political management or in political campaigns.” Section 15 declares that the activities theretofore determined by the United States Civil Service Commission to be prohibited to employees in the classified civil service of the United States by the Civil Service Rules shall be deemed to be prohibited to federal employees covered by the Hatch Act. These sections of the Act cover all federal officers and employees whether in the classified civil service or not and a penalty of dismissal from employment is imposed for violation. There is no designation of a single governmental agency for its enforcement.
For many years before the Hatch Act the Congress had authorized the exclusion of federal employees in the competitive classified service from active participation in political management and political campaigns. In June, 1938, the congressional authorization for exclusion had been made more effective by a Civil Service Commission dis-. ciplinary rule. That power to discipline members of. the competitive classified civil service continues in the Commission under the Hatch Act by virtue of the present applicability of the Executive Order No. 8705, March 5, 1941. The applicable Civil Service Commission rules are. printed in the margin. The only change in the Civil Service Rules relating to political activity, caused by the Hatch Act legislation, that is of significance in this case is the elimination on March 5, 1941, of the word “privately” from the phrase “to express privately their opinions.” This limitation to private expression had regulated classified personnel since 1907.
The present appellants sought an injunction before a statutory three-judge district court of the District of Columbia against appellees, members of the United States Civil Service Commission, to prohibit them from enforcing against appellants the provisions of the second sentence of § 9 (a) of the Hatch Act for the reason that the sentence is repugnant to the Constitution of the United States. A declaratory judgment of the unconstitutionality of the sentence was also sought. The sentence referred to reads, “No officer or employee in the executive branch of the Federal Government... shall take any active part in political management or in political campaigns.”
Various individual employees of the federal executive civil service and the United Public Workers of America, a labor union with these and other executive employees as members, as a representative of all its members, joined in the suit. It is alleged that the individuals desire to engage in acts of political management and in political campaigns. Their purposes are as stated in the excerpt from the complaint set out in the margin. From the affidavits it is plain, and we so assume, that these activities will be carried on completely outside of the hours of employment. Appellants challenge the second sentence of § 9 (a) as unconstitutional for various reasons. They are set out below in the language of the complaint.
None of the appellants, except George P. Poole, has violated the provisions of the Hatch Act. They wish to act contrary to its provisions and those of § 1 of the Civil Service Rules and desire a declaration of the legally permissible limits of regulation. Defendants moved to dismiss the complaint for lack of a justiciable case or controversy. The District Court determined that each of these individual appellants had an interest in their claimed privilege of engaging in political activities, sufficient to give them a right to maintain this suit. United Federal Workers of America (C. I. O.) v. Mitchell, 56 F. Supp. 621, 624. The District Court further determined that the questioned provision of the Hatch Act was valid and that the complaint therefore failed to state a cause.of action. It accordingly dismissed the complaint and granted summary judgment to defendants.
First. The judgment of the District Court was entered on September 26, 1944. An order was duly entered on October 26, 1944, allowing an appeal. 28 U. S. C. § 380a. The same section of the statutes provides: “In the event that an appeal is taken under this section, the record shall be made up and the case docketed in the Supreme Court of the United States within sixty days from the time such appeal is allowed, under such rules as may be prescribed by the proper courts.” This appeal was not docketed in this Court until February 2, 1945, a date after the return date of the order under § 380a. Thereafter the Government suggested a lack of jurisdiction in this Court to consider the appeal because of the failure of appellants to docket the appeal in time. We postponed consideration of our jurisdiction over this appeal to the hearing. We proceed now to a disposition of this question.
To comply with the suggestion of § 380a, this Court adopted Rule 47. In other cases of appeals, Rule 11 governs docketing. If Rule 11 applies also to appeals under § 380a, we may hear this appeal, for the steps for dismissal required by Rule 11 were not taken by the appellees. This is because upon the allowance of an appeal by a judge of the district court as here, Supreme Court Rules 10 and 36, the case, is transferred from the district court to this Court and subsequent steps for dismissal or affirmance are to be taken here. If, however, the above-quoted provision of § 380a as to docketing is a prerequisite to the power of this Court to review, this appeal must fail.
Prior to the passage of § 380a, appeals docketed after the return day were governed by Rule 11, 275 U. S. 602. In principle it has long been in existence. By the words of the rule, it appears that dismissal for appellant’s tardiness in docketing requires a step by the appellee. Even after dismissal for failure to docket, the rule permits this Court to allow the appellant to docket. Nothing in the legislative history which has been called to our attention indicates that Congress intended its docketing provision to vary Rule 11. Direct appeal accomplishes the congressional purpose of expediting review, of course, and is consistent with an unchanged practice as to dismissals. The time to docket may have been enlarged from the conventional return day of Rules 10 and 11 to bring continental uniformity, see Rule 10, or to give time for the preparation of a record which would often be large and not transcribed or printed. It will not expedite determination of constitutional questions to dismiss appeals because of errors of practice. In fact the sentence of § 380a on docketing seems deliberately to leave the practice on failure to docket to rules of court. We do not construe the requirement of docketing within sixty days as a limitation on our power to hear this appeal.
So far as our Rule 47 is concerned, we construe it as requiring in accordance with § 380a the docketing in sixty days from the allowance of the appeal, instead of the forty days of our Rule 10, and that, as to dismissals, the first sentence of Rule 47 requires the same practice for appeals under § 380a that Rule 11 does for other appeals. We think it desirable to have sufficient flexibility in the rule to permit extensions of the time for return in the unusual situations that occur when large records are involved. In view of the recognized congressional purpose to quicken review under § 380a, the discretion to delay final hearing allowed under Rule 11 will be exercised only on a definite showing of need therefor to assure fair review. This leads us to hear this appeal.
[Second. At the threshold of consideration, we are called upon to decide whether the complaint states a controversy cognizable in this Court. We defer consideration of the cause of action of Mr. Poole until section Three of this opinion. The other individual employees have elaborated the grounds of their objection in individual affidavits for use in the hearing on the summary judgment.] We select as an example one that contains the essential averments of all the others and print below the portions with significance in this suit. Nothing similar to the fourth paragraph of the printed affidavit is contained in the other affidavits. The assumed controversy between affiant and the Civil Service Commission as to affiant's right to act as watcher at the polls on November 2, 1943, had long been moot when this complaint was filed. We do not therefore treat this allegation separately. The affidavits, it will be noticed, follow the generality of purpose expressed by the complaint. See note 11 supra. declare a desire to act contrary to the rule against political activity but not that the rule has been violated. In this respect, we think they differ from the type of threat adjudicated in Railway Mail Association v. Corsi, 326 U. S. 88. In that case, the refusal to admit an applicant to membership in a labor union on account of race was involved. Admission had been refused. 326 U. S. at p. 93, note 10. Definite action had also been taken in Hill v. Florida, 325 U. S. 538. In the Hill case an injunction had been sought and allowed against Hill and the union forbidding Hill from acting as the business agent of, the union and the union from further functioning as a union until it complied with the state law. The threats which menaced the affiants of these affidavits in the case now being considered are closer to a general threat by officials to enforce those laws which they are charged to administer, compare Watson v. Buck, 313 U. S. 387, 400, than they are to the direct threat of punishment against a named organization for a completed act that made the Mail Association arid the Hill cases justiciable.]
As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, “concrete legal issues, presented in actual cases, not abstractions,” are requisite. This is as true of declaratory judgments as any other field. These appellants seem clearly to seek advisory opinions upon broad claims of rights protected by the 'First, Fifth, Ninth and Tenth Amendments to the Constitution. As these appellants are classified employees, they have a right superior to the generality of citizens, compare Fairchild v. Hughes, 258 U. S. 126, but the facts of their personal interest in their civil rights, of the general threat of possible interference with those rights by the Civil. Service Commission under its rules, if specified things are done by appellants, does not make a justiciable case or controversy. Appellants want to engage in “political management and political campaigns,” to persuade others to follow appellants’ views by discussion, speeches, articles and other acts reasonably designed to secure the selection of appellants’ political choices. Such generality of objection is really an attack on the political expediency of the Hatch Act, not the presentation of legal issues. It is beyond the competence of courts to render such a decision. Texas v. Interstate Commerce Commission, 258 U. S. 158, 162.
[The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other.]
The Constitution allots the nation’s judicial power to the federal courts. Unless these courts respect the limits of that unique authority, they intrude upon powers vested in the legislative or executive branches. Judicial adherence to the doctrine of the separation of powers preserves the courts for the decision of issues, between litigants, capable of effective determination. Judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants. When the courts act continually within these constitutionally imposed boundaries of their power, their ability to perform their function as a balance for the people’s protection against abuse of power by other branches of government remains unimpaired. Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would become the organ of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches. By these mutual checks and balances by and between the branches of government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority. No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations. Watson v. Buck, supra, p. 400. We should not take judicial cognizance of the situation presented on the part of the appellants considered in this subdivision of the opinion. [These reasons lead us to conclude that the determination of the trial court, that the individual appellants, other than Poole, could maintain this action, was erroneous.]
[Third. The appellant Poole does present by the complaint and affidavit matters appropriate for judicial determination. The affidavits filed by appellees confirm that Poole has been charged by the Commission with political activity and a proposed qrder for his removal from his position adopted subject to his right.under Commission procedure to reply to the charges and to present further evidence in refutation. We proceed to consider the controversy over constitutional power at issue between Poole and the Commission as defined.by the charge and preliminary finding upon one side and the admissions of Poole’s affidavit upon the other. Our determination is limited to those facts. This proceeding so limited meets the requirements of defined rights and a definite threat to interfere with a possessor of the menaced rights by a penalty for an act done in violation of the claimed restraint.
Because we conclude hereinafter that the prohibition of § 9 of the Hatch Act and Civil Service Rule 1,] see notes 2 and 6 abovedare valid, it is unnecessary to consider, as this is a declaratory judgment action, whether or not this appellant sufficiently alleges that an irreparable injury to him would result from his removal from his position. Nor need we inquire whether or not a court of equity would enforce by injunction any judgment declaring rights. Since Poole admits that he violated the rule against political activity and that, removal from office is therefore mandatory under the act, there is no question as to the exhaustion of administrative remedies. The act provides no administrative or statutory review for the order of the Civil Service Commission.] Compare Stark v. Wickard, 321 U. S. 288, 306-10; Macauley v. Waterman S. S. Corporation, 327 U. S. 540. [As no prior proceeding, offering an effective remedy or otherwise, is pending in the courts, there is no problem of judicial discretion as to whether to take cognizance of this case.] Brillhart v. Excess Insurance Co., 316 U. S. 491, 496-97, dissent at 500; Larson v. General Motors Corporation, 134 F. 2d 450, 453. [Under such circumstances, we see no reason why a declaratory judgment action, even though constitutional issues are involved, does not lie.] See Rules of Civil Procedure, Rule 57. Steele v. Louisville & Nashville Railroad Co., 323 U. S. 192, 197, 207; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210, 212, et seq.
Fourth. [This brings us to consider the narrow but important point involved in Poole’s situation. Poole’s stated offense is taking an “active part in political management or in political campaigns.” He was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers. The issue for decision and the only one we decide is whether such a breach of the Hatch Act and Rule 1 of the Commission can, without violating the Constitution, be made the basis for disciplinary action.]
When the issue is thus narrowed, the interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel. Only while the employee is politically active, in the sense of Rule 1, must he withhold expression of opinion on public subjects. See note 6. We assume that Mr. Poole would be expected to comment publicly as committeeman on political matters, so that indirectly there is an attenuated interference. We accept appellants’ contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments are involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment. Appellants' objections under the Amendments are basically the same.
We do not find persuasion in appellants' argument that such activities during free time are not subject to regulation even though admittedly political activities cannot be indulged in during working hours. The influence of political activity by government employees, if evil in its effects on the service, the employees or people dealing with them, is hardly less so because that activity takes place after hours. Of course, the question of the need for this regulation is for other branches of government rather than the courts. Our duty in this case ends if the Hatch Act provision under examination is constitutional.
Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolutes. The requirements of residence and age must be met. The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government.
As pointed out hereinbefore in this opinion, the practice of excluding classified employees from party offices and personal political activity at the polls has been in effect for several decades. Some incidents similar to those that are under examination here have been before this Court and the prohibition against certain types of political activity by officeholders has been upheld. The leading case was decided in 1882. Ex parte Curtis, 106 U. S. 371. There a subordinate United States employee was indicted for violation of an act that forbade employees who were not appointed by the President and confirmed by the Senate from giving or receiving money for political purposes from or to other employees of the government on penalty of discharge and criminal punishment. Curtis urged that the statute was unconstitutional. This Court upheld the right of Congress to punish the infraction of this law. The decisive principle was the power of Congress, within reasonable limits, to regulate, so far as it might deem necessary, the political conduct of its employees. A list of prohibitions against acts by public officials that are permitted to other citizens was given. This Court said, p. 373:
“The evident purpose of Congress in all this class of enactments has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power, and it is not easy to see why the act now under consideration does not come fairly within the legitimate means to such an end.”
The right to contribute money through fellow employees to advance the contributor’s political theories was held not to be protected by any constitutional provision. It was held subject to regulation. A dissent by Mr. Justice Bradley emphasized the broad basis of the Court’s opinion. He contended that a citizen’s right to promote his political views could not be so restricted merely because he was an official of government.
No other member of the Court joined in this dissent. The conclusion of the Court, that there was no constitutional bar to regulation of such financial contributions of public servants as distinguished from the exercise of political privileges such as the ballot, has found acceptance in the subsequent practice of Congress and the growth of the principle of required political neutrality for classified public servants as a sound element for efficiency. The conviction that an actively partisan governmental personnel threatens good administration has deepened since Ex parte Curtis. Congress recognizes danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections.
In United States v. Wurzbach, 280 U. S. 396, the doctrine of legislative power over actions of governmental officials was held valid when extended to members of Congress. The members of Congress were prohibited from receiving contributions for “any political purpose whatever” from any other federal employees. Private citizens were not affected. The argument of unconstitutionality because of interference with the political rights of a citizen by that time was dismissed in a sentence. Compare United States v. Thayer, 209 U. S. 39.
The provisions of § 9 of the Hatch Act and the Civil Service Rule 1 are not dissimilar in purpose from the statutes against political contributions of money. The prohibitions now under discussion are directed at political contributions of energy by government employees. These contributions, too, have a long background of disapproval. Congress and the President are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.
Another Congress may determine that, on the whole, limitations on active political management by federal personnel are unwise. The teaching, of experience has evidently led Congress to enact the Hatch Act provisions. To declare that the present supposed evils of political activity are beyond the power of Congress to redress would leave the nation impotent to deal with what many sincere men believe is a material threat to the democratic system. Congress is not politically naive or regardless of public welfare or that of the employees. It leaves untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency. With that limitation only, employees may make their contributions to public affairs or protect their own interests, as before the passage of the Act.
The argument that political neutrality is not indispensable to a merit system for federal employees may be accepted. But because it is not indispensable does not mean that it is not desirable or permissible. Modern American politics involves organized political parties. Many classifications of government employees have been accustomed to work in politics—national, state and local— as a matter of principle or to assure their tenure. Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system. It may have considered that parties would be more truly devoted to the public welfare if public servants were not overactive politically.
Appellants urge that federal employees are protected by the Bill of Rights and that Congress may not “enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.” None would deny such limitations on congressional power but, because there are some limitations, it does not follow that a prohibition against acting as ward leader or worker at the polls is invalid. A reading of the Act and Rule 1, notes 2 and 6, supra, together with the Commission’s determination shows the wide range of public activities with which there is no interference by the legislation. It is only partisan political activity that is interdicted. It is active participation in political management and political campaigns. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the government employee does not direct his activities toward party success.
It is urged, however, that Congress has gone further than necessary in prohibiting political activity to all types of classified employees. It is pointed out by appellants “that the impartiality of many of these is a matter of complete indifference to the effective performance” of their duties. Mr.;Poole would appear to be a good illustration for appellants' argument. The complaint states that he is a roller in the mint. We take it this is a job calling for the qualities of a skilled mechanic and that it does not involve contact with the public. Nevertheless, if in free time he is engaged in political activity, Congress may have concluded that the activity may promote or retard his advancement or preferment with his superiors. Congress may have thought that government employees are handy elements for leaders in political policy to use in building a political machine. For regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service. There are hundreds of thousands of United States employees with positions no more influential upon policy determination than that of Mr. Poole. Evidently what Congress feared was the cumulative effect on employee morale of political activity by all employees who could be induced to participate actively. It does not seem to us an unconstitutional basis for legislation.
There is a suggestion that administrative workers maybe barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act “narrowly and selectively drawn to define and punish the specific conduct.” A ready answer, it seems to us, lies in the fact that the prohibition of § 9 (a) of the Hatch Act “applies without discrimination to all employees whether industrial or administrative” and that the Civil Service Rules, by § 15 made a part of the Hatch Act, makes clear that industrial workers are covered in the prohibition against political activity. Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress. We do not know whether the number of federal employees will expand or contract; whether the need for regulation of their political activities will increase or diminish. The use of the constitutional power of regulation is for Congress, not for the courts.
We have said that Congress may regulate the political conduct of government employees “within reasonable limits,” even though the regulation trenches to some extent upon unfettered political action. The determination of the extent to which political activities of governmental employees shall be regulated lies primarily with Congress. Courts will interfere only when such regulation passes beyond the generally existing conception of governmental power. That conception develops from practice, history, and changing educational, social and economic conditions. The regulation of such activities as Poole carried on has the approval of long practice by the Commission, court decisions upon similar problems and a large body of informed public opinion. Congress and the administrative agencies have authority over the discipline and efficiency of the public service. When actions of civil servants in the judgment of Congress menace the integrity and the competency of the service, legislation to forestall such danger and adequate to maintain its usefulness is’required. The Hatch Act is the answer of Congress to this need. We cannot say with such a background that these restrictions are unconstitutional.
Section 15 of the Hatch Act, note 3 above, defines an active part in political management or political campaigns as the same activities that the United States Civil Service Commission has determined to be prohibited to classified civil service employees by the provisions of the Civil Service Rules when § 15 took effect July 19, 1940. 54 Stat. 767. The activities of Mr. Poole, as ward executive committeeman and a worker at the polls, obviously fall within the prohibitions of § 9 of the Hatch Act against taking an active part in political management and political campaigns. They are also covered by the prior determinations of the Commission. We need to examine no further at this time into the validity of the definition of political activity and § 15.
The judgment of the District Court is accordingly
Affirmed.
Mb. Justice Murphy and Mr. Justice Jackson took no part in the consideration or decision of this case.
Mr. Justice Rutledge dissents as to Poole for the reasons stated by Mr. Justice Black. He does not pass upon the constitutional questions presented by the other appellants for the reason that he feels the controversy as to them is not yet appropriate for the discretionary exercise of declaratory judgment jurisdiction.
Another controversy under the same act is decided today. Oklahoma v. United States Civil Service Commission, post, p. 127.
August 2, 1939, 53 Stat. 1147; July 19, 1940, 54 Stat. 767; 56 Stat. 181, 986; 58 Stat. 136, 148, 727; 59 Stat. 108, 658; 60 Stat. 937. Only the first two are important for consideration of this case.
18 U. S. C. § 61h, as amended:
["(a) It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, except a part-time officer or part-time employee without compensation or with nominal compensation serving in connection with the existing war effort, other than in any capacity relating to the procurement or manufacture of war material shall take any active part in political management or in political campaigns.] All such persons shall retain the right to vote as, they may choose and to express their opinions on all political subjects and candidates. For the purposes of this section the term 'officer’ or 'employee’ shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nationwide administration of Federal laws.
["(b) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.” 53 Stat. 1147, 1148; 54 Stat. 767; 56 Stat. 181.]
18 U.S. C. § 61o:
“The provisions of this subchapter which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the-part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns.” 54 Stat. 767, 771.
See Civil Service Act (1883), § 2, 22 Stat. 403-404:
“Sec. 2. That it shall be the duty of said commissioners:
“First. To aid the President, as he may request, in preparing suitable rules for carrying this act into effect, and when said rules shall have been promulgated it shall be the duty of all officers of the United States in the departments and offices to which any such rules may relate to aid, in all proper ways, in carrying said rules, and any modifications thereof, into effect.
“Second. And, among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows:
“Sixth, that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.”
5 U.S.C. § 631:
“The President is authorized to... establish regulations for the conduct of persons who may receive appointments in the civil service.”
First Annual Report, Civil Service Commission, H. R. Ex. Doc. No. 105, 48th Cong., 1st Sess., p. 45:
“In the exercise of the power vested in the President by the Constitution, and by virtue of the 1753d section of the Revised Statutes, and of the civil service act approved January 16, 1883, the following rules for the regulation and improvement of the executive civil service are hereby amended and promulgated:
Rule I.
“No person in said service shall use his official authority or influence either to coerce the political action of any person or body or to interfere with any election.”
Executive Order No. 642, June 3, 1907 (amended to consolidate without changing wording, Executive Order No. 655, June 15, 1907); Twenty-Fourth Annual Report, Civil Service Commission, House Doc. No. 600, 60th Cong., 1st Sess., p. 104:
“Section 1 of Rule I of the civil-service rules is hereby amended to read as follows:
“No person in the Executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. Persons who, by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns.”
Civil Service Rules 15, 3 Fed. Reg. 1525.
5 C. F. R., Cum. Supp., §1.1: “No interference with elections. No person in the executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the results thereof. Persons who by the provisions of the rules in this chapter are in the competitive classified service, while retaining the right to vote as they please and to express their opinion on all political subjects, shall take no active part in political management or in political campaigns.”
Section 15.1: “Legal appointment necessary to compensation. Whenever the Commission finds, after due notice and opportunity for explanation, that any person has been appointed to or is holding any position, whether by original appointment,
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
RICHMOND LEASING CO., and General Electric Credit Corp., Plaintiffs-Appellees, v. CAPITAL BANK, N.A., etc. and Chemical Bank & Chemcredit, Inc., Defendants-Appellants.
No. 84-2565
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 17, 1985.
Winstead, McGuire, Sechrest & Minick, Jay J. Madrid, Dallas, Tex., for defendants-appellants.
Zalkin, Rodin & Goodman, Henry L. Goodman, Andrew D. Gottfried, New York City, for Chemical Bank & Chemcredit.
Sheinfeld, Maley & Kay, Myron M. Sheinfeld, John P. Melko, Houston, for Richmond Leasing.
Gilpin, Maynard, Parsons, Pohl & Bennett, David M. Lacey, Houston, Tex., for General Elec.
Before GEE, JOHNSON and DAVIS, Circuit Judges.
PER CURIAM:
In this Chapter 11 bankruptcy reorganization, the appellants, bank creditors of the debtor in possession, Richmond Leasing Company (RLC), challenge the district court’s affirmance of the bankruptcy court’s approval of RLC’s decision to assume an amended lease under § 365 of the Bankruptcy Code. We conclude that the district court did not err in approving the assumption of the lease as a valid business judgment of the debtor, and thus we affirm.
The debtor in possession, RLC, is in the business of leasing railroad cars. It is a wholly-owned subsidiary of Richmond Tank Car (RTC), which manufactures railroad cars. The lease that forms the subject matter of this appeal is part of a larger transaction in which RLC and its parent corporation, RTC, both played a part. RTC manufactured and sold 402 railroad cars to General Electric Credit Corporation (GECC). GECC in turn leased the railroad cars back to RTC’s subsidiary, RLC, for a twenty-year term. Under the lease agreement between GECC and RLC, dated June 1, 1982, RLC agreed to pay GECC approximately $1.8 million every six months, beginning on June 30, 1983. RLC also granted GECC a security interest in RLC’s subleases of the cars to third parties. There was some suggestion at the hearing that GECC may have paid RTC a premium price for the ears and RLC may in turn have leased them from GECC at a premium. The 402 cars covered by the lease make up less than ten percent of RLC’s inventory.
On January 7, 1983, before the first payment was due under this lease, RLC filed its petition in bankruptcy. In April 1983, RLC and GECC offered for court approval a renegotiated lease that RLC proposed to assume. Under the amended lease, GECC agreed to waive existing defaults in the lease and to reduce the rent due under the lease through 1986 to quarterly payments of $500,000 or 85% of the gross quarterly revenues generated by the 402 cars, whichever was less; however, the quarterly payments were not to average less than $400,000 for two consecutive quarters. From 1986 through 2002, the quarterly payments were to increase to $937,500. In exchange, RTC agreed to issue preferred stock to GECC periodically, and GECC placed restrictions upon RTC’s ability to encumber its property, buy stock, make loans, guarantee obligations, dilute its stock, dispose of its fixed assets at less than fair market value, lease property, merge with or be purchased by another company, or dispose of its receivables out of the ordinary course of business, without GECC’s consent. The amended lease designates RTC’s violation of these restrictions as an event of default. RTC’s bankruptcy is an event of default under both the original and the amended leases.
After a hearing, the bankruptcy court approved the joint application of RLC and GECC for authority to amend and assume the lease. The court’s order provided that the automatic stay imposed by 11 U.S.C. § 362 would be lifted automatically in the event of RLC’s default, after GECC notified the court and all parties in interest. On appeal from the bankruptcy court, the district court affirmed the bankruptcy court’s approval of the assumption of the lease.
The bank creditors raise several points in their appeal to this Court. We shall consider those points in turn.
The Standard of Review
The bank creditors argue that the district court improperly applied a “clearly erroneous” standard in its review of the bankruptcy court’s findings of ultimate facts and conclusions of law. Specifically, the bank creditors maintain that the district court reviewed under the clearly erroneous standard the bankruptcy court’s decisions regarding the correctness of RLC’s business judgment in assuming the amended lease, whether RLC had provided adequate assurance of performance, whether the amended lease implemented a sub rosa reorganization, and whether the assumption of the lease with some amendment favorable to GECC complied with § 365. We have examined the district court’s memorandum and order carefully, and we disagree. It is quite clear that the district court applied the appropriate de novo standard of review to the legal questions whether the amended lease implemented a sub rosa reorganization and whether the assumption of the amended lease complied with the standards set forth in § 365.
Moreover, assuming that the district court applied a “clearly erroneous” standard when it reviewed the bankruptcy court’s decisions on business judgment and adequate assurance, we conclude that the disputes involving those issues centered on contested facts. No one denies that if RLC can generate sufficient income from GECC’s cars and from its unencumbered assets to meet the payments on the amended lease, then the lease represents a valid exercise of RLC's business judgment and RLC has offered adequate assurance of performance. The various financial experts and company officers who testified at the hearing on the application to assume the lease differed in the inferences they drew from RLC’s accounting data, upon the accuracy of which all agreed.
Were we entirely without guidance on the application of the “clearly erroneous” standard in this situation, we would adopt that standard in deference to the bankruptcy court’s experience and expertise in resolving disputes between financial expert witnesses. In deciding this issue, however, we also have the benefit of the Supreme Court’s decision in Anderson v. City of Bessemer City, — U.S.-,-, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), holding that an appellate court must review a finding of fact under the “clearly erroneous” standard of Rule 52(a) of the Federal Rules of Civil Procedure, even when the lower court’s findings of fact “do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” — U.S. at-, 105 S.Ct. at 1512 (emphasis added). The Court explained:
The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.
Id.
Rule 8013 of the Bankruptcy Rules, which we apply here, mandates the application of the “clearly erroneous” standard of review to the bankruptcy court’s findings of fact. Its language tracks that of Rule 52(a) of the Federal Rules of Civil Procedure almost verbatim. The Anderson reasoning is thus equally compelling in this case.
RLC’s Exercise of Business Judgment and Adequate Assurance of Future Performance
The bank creditors invite us to overturn the district court’s holding that the bankruptcy court did not clearly err when it found that RLC’s assumption of the amended lease was a proper exercise of its business judgment. The bank creditors urge us to hold that the business judgment question, as a mixed question of law and fact, is subject to de novo review. We have noted above that the decision whether assumption of the lease represented a proper exercise of business judgment depended entirely upon resolution of a factual dispute as to whether RLC could generate sufficient revenues in the future to cover its obligations under the lease. The parties did not dispute the legal standard to be applied in § 365 cases, nor could they. It is well established that “the question whether a lease should be rejected ... is one of business judgment.” Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 318 U.S. 523, 550, 63 S.Ct. 727, 742, 87 L.Ed. 959 (1943). See also Matter of Minges, 602 F.2d 38, 42-43 (2d Cir.1979). “As long as assumption of a lease appears to enhance a debtor’s estate, court approval of a debtor-in-possession’s decision to assume the lease should only be withheld if the debtor’s judgment is clearly erroneous, too speculative, or contrary to the provisions of the Bankruptcy Code____” Allied Technology, Inc. v. R.B. Brunemann & Sons, 25 B.R. 484, 495 (Bankr.S.D.Ohio 1982).
The parties did not dispute whether doubts about RLC’s financial stability had achieved a critical mass sufficient to render RLC’s assuming the lease an improper exercise of business judgment; instead they disputed whether the doubts about RLC’s financial status were justified. Thus this issue is properly considered under the “clearly erroneous” standard of review. The bankruptcy court heard extensive testimony on direct examination and cross-examination of financial experts and company officers. It was called upon to determine whether a projection of future income based on RLC’s revenues was more accurate than one based on cash flows, whether certain types of income were sufficiently assured to be considered as available to pay RLC’s lease obligations, whether an incipient upward turn in the railroad car leasing business was likely to continue in the long term, and whether the administrative claim that might result from RLC’s default on the amended lease would be so large that possible prejudice to RLC’s unsecured creditors mandated a more cautious business approach than that taken in assuming the lease. The bankruptcy court’s findings reflect its decisions on these disputed factual matters. It did not clearly err.
Similarly, the parties do not dispute that 11 U.S.C. § 365(b)(1)(C) requires a debtor in possession to provide adequate assurance of future performance when it assumes a lease. Nor do they dispute the legal standard for determining adequate assurance. In In Re Sapolin Paints, Inc., 5 B.R. 412, 420-21 (Bankr.E.D.N.Y.1980), the court traced the phrase “adequate assurance” as it is used in § 365 to the “adequate assurance” defined in § 2-609(1) of the Uniform Commercial Code:
The terms “adequate assurance of future performance” are not words of art; the legislative history of the Code shows that they were intended to be given a practical, pragmatic construction.
The phrase first appears in the legislation proposed by the Commission on Bankruptcy Laws. ...
The Commission Report explains the language “adequate assurance of future performance” as follows:
“The language ‘is adopted from Uniform Commercial Code § 2-609(1).’ What constitutes ‘reasonable time thereafter’ for curing defaults or an ‘adequate assurance of future performance’ must be determined by consideration of the facts of the proposed assumption. Cf. Official Comment 4 to Uniform Commercial Code § 2-609 (1972 Edition). It is not intended, however, that any non-debtor party should acquire greater rights in a ease under the act than he has outside the act.” Report of the Commission on Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess. Pt. II 156-57 (1973).
Section 2-609 of the Uniform Commercial Code, from which the bankruptcy statute borrows its critical language, provides that “when reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of future performance .... ” The Commentaries to the Code note that “ ‘adequate’ assurance is to be ‘defined by commercial rather than legal standards.’ ” Official Comment 3 To Uniform Commercial Code § 2-609 (1972 Ed.). What constitutes “adequate assurance” is to be determined by factual conditions; the seller must exercise good faith and observe commercial standards; his satisfaction must be based upon reason and must not be arbitrary or capricious.
Courts have consistently determined whether a debtor offered adequate assurance of future performance by considering whether the debtor’s financial data indicated its ability to generate an income stream sufficient to meet its obligations, the general economic outlook in the debt- or’s industry, and the presence of a guarantee. See, e.g., Seacoast Products, Inc. v. Spring Valley Farms, 34 B.R. 379, 381 (Bankr.M.D.N.C.1983); In re Berkshire Chemical Haulers, Inc., 20 B.R. 454, 458-59 (Bankr.Mass.1982); In re Lafayette Radio Electronics Corp., 9 B.R. 993, 1000 (Bankr.E.D.N.Y.1981). The bankruptcy court considered just such factual matters in this case.
The bank creditors contend that the bankruptcy court erred when it credited the testimony of RLC’s witnesses projecting RLC’s future profitability rather than the testimony of the bank creditors’ witnesses. That dispute is essentially factual and is subject to review under the “clearly erroneous” standard. We affirm the district court’s holding that the bankruptcy court did not clearly err when it made this determination.
RLC’s' Granting GECC Greater Rights Under the Amended Lease
The bank group contends that the bankruptcy court erred when it approved RLC’s assumption of the amended lease on the ground that § 365 of the Bankruptcy Code requires that the debtor grant the creditor no greater rights under the amended lease than under the original lease. This argument misconstrues the requirements of § 365.
We first observe that the amended lease significantly reduces RLC’s short-term obligations to GECC. In exchange for this concession, GECC receives additional benefits under the amended lease largely from RLC’s parent corporation, RTC, in the form of stock and increased control over the way RTC conducts its business. The consideration flowing from RTC to GECC cannot affect any interest of the bank creditors that RLC’s bankruptcy proceeding protects. Under the amended agreement, RLC provides GECC additional consideration only in the sense that it agrees that RTC’s default on its new obligations to GECC will permit GECC to terminate the agreement and repossess its cars from RLC.
Section 365 is intended to provide a means whereby a debtor can force another party to an executory contract to continue to perform under the contract if (1) the debtor can provide adequate assurance that it, too, will continue to perform, and if (2) the debtor can cure any defaults in its past performance. The provision provides a means whereby a debtor can force others to continue to do business with it when the bankruptcy filing might otherwise make them reluctant to do so. The section thus serves the purpose of making the debtor’s rehabilitation more likely.
In this context, it becomes clear that in the typical case under § 365, if anyone objects to the debtor’s assumption of the contract it will be the other party to the executory contract, not the debtor’s creditors who are strangers to the transaction. Thus, the often-repeated statement that the debtor must accept the contract as a whole means only that the debtor cannot choose to accept the benefits of the contract and reject its burdens to the detriment of the other party to the agreement. See In re Holland Enterprises, Inc., 25 B.R. 301 (Bankr.E.D.N.C.1982); In re LHD Realty Corp., 20 B.R. 717 (Bankr.S.D.Ind.1982). Similarly, the other party cannot hold out for concessions from the debtor beyond those required to provide adequate assurance. See In re Lafayette Radio Electronics Corp., 9 B.R. 993, 998 (E.D.N.Y.1981). We conclude that RLC’s recognizing an event of default in RTC’s failure to perform the new covenants, which were included in the amended lease in order to assure GECC that RTC would perform its guarantee, is part of RLC’s offer of adequate assurance of future performance to GECC. See In re Kennesaw Dairy Queen Brazier, 28 B.R. 535, 536 (N.D.Ga.1983) (stating, “The fact that debtors may cure defaults and reinstate contracts or leases also is perhaps the clearest example of the modification of an executory contract or unexpired lease.”).
Moreover, to the extent that the amended lease represents a true renegotiation of the obligations of RLC, RTC and GECC, it falls entirely outside of § 365’s concern. 11 U.S.C. §§ 1107 and 1108, taken together, authorize a debtor in possession to operate the business of the debtor. Nothing in the Code suggests that the debtor may not modify its contracts when all parties to the contract consent. Although § 1107 provides that a court may limit the debtor’s exercise of the rights of the trustee, including the § 1108 right to operate the business, in the absence of special circumstances or a specific Code provision, we see no reason to require the debtor to do more than justify its actions under the “business judgment” standard if creditors object. More exacting scrutiny would slow the administration of the debt- or’s estate and increase its cost, interfere with the Bankruptcy Code’s provision for private control of administration of the estate, and threaten the court’s ability to control a case impartially. See In re Airlift International, Inc., 18 B.R. 787, 789 (Bankr.S.D.Fla.1982); In re Curlew Valley Assocs., 14 B.R. 506, 509-514 (Bankr.D.Utah 1981). This business judgment standard thus does not differ from the business judgment inquiry already undertaken and resolved in favor of the amended lease under § 365. Accordingly, the bankruptcy court did not err in approving the lease as amended, and we affirm the district court’s order on this point.
Lease as a Sub Rosa Plan of Reorganization
The bank creditors contend that the amended lease goes beyond what is permissible in the assumption of a lease and establishes, sub rosa, a plan of reorganization, allowing GECC and RLC to circumvent the plan confirmation requirements of Chapter 11. The bank creditors complain that the lease does not expressly restrict payment due under the amended lease to the revenues generated by the GECC rail cars; the order approving the lease provides for the automatic lifting of the § 362 stay if there is a default; in the event of default, the lease permits GECC to assert a large administrative claim that would affect the proportion of assets that could be allocated to other creditors under a plan of reorganization; and the amended lease restricts RTC’s actions and names as an event of default RTC’s filing for bankruptcy, so that, in the event of RTC’s bankruptcy, a consolidation with RLC’s case would be more difficult.
We do not doubt that a debtor can assume a lease under its original, prebankruptcy terms without creating a sub rosa plan of reorganization, so long as such an assumption is a valid exercise of a debtor’s business judgment. Thus, we need not greatly concern ourselves with the alleged debilitating effects of GECC’s rights, under the amended lease, to look to sources other than revenues from the GECC cars for payment, to assert a large administrative claim in the event of default, or to consider RTC’s bankruptcy as an event of default; the original lease afforded GECC all those advantages, and the bankruptcy court determined that they do not render assumption of the amended lease an improper business decision. The lifting of the automatic stay and the restrictions on RTC’s actions, even were we to combine them with the advantages under the original lease, do not alter creditors’ rights, dispose of assets, and release claims to the extent proposed in the wide-ranging transaction disapproved in In re Braniff Airways, Inc., 700 F.2d 935 (5th Cir.1983). Although the disposition of a “crown jewel” asset might, in combination with other factors, severely restrict a future reorganization plan so as to amount to a sub rosa plan of reorganization even though all or substantially all of the debt- or’s assets were not involved in the transaction, that is not the case here. We will not make a mountain out of the molehill of restrictions included in the amended lease.
Lifting of Automatic Stay in the Event of Default
The bank creditors contend that the bankruptcy court erred in conditionally lifting the automatic stay in the event of default without a showing of adequate cause. 11 U.S.C. § 362(d)(2) permits the court to lift the automatic stay, after notice and a hearing, if the debtor does not have an equity in the property that the movant seeks to recover and the property is not necessary to an effective organization. The order lifting the automatic stay was part and parcel of the amended lease transaction here, and the parties offered testimony concerning its effect at the hearing on the application to assume the lease. Although the bankruptcy court did not make findings of fact with respect to the requirements of 11 U.S.C. § 362(d)(2), it did order the lifting of the automatic stay “[p]ursuant to the Joint Application.” When a court has not entered findings of fact in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, the appellate court ordinarily vacates the judgment and remands the case for appropriate findings. Remand is unnecessary, however, if “all the facts relied upon to support the judgment are in the record and are undisputed, or if the record as a whole presents no genuine issue as to any material fact.” Armstrong v. Collier, 536 F.2d 72 (5th Cir.1976) (quoting King v. Commissioner of Internal Revenue, 458 F.2d 245, 249 (6th Cir.1972)). It is undisputed that RLC has no equity in GECC’s cars. Under § 362(g), the party opposing the lifting of the stay bears the burden of proof on all issues other than the issue of the debtor’s equity in the property. There is no evidence on record to suggest that GECC’s railroad cars, which make up less than ten percent of RLC’s inventory, are necessary to an effective reorganization of RLC. Therefore, the bankruptcy judge did not err in lifting the automatic stay.
Because we have found no error in the district court’s decision in this case, its order is
AFFIRMED.
. 11 U.S.C. § 365.
. The district court correctly held that RLC was not in default of its obligations under the lease, since no payment was yet due. RLC’s filing for bankruptcy was an event of default under the lease, but under the provisions of 11 U.S.C. § 365(b)(2), that default would have had no effect in bankruptcy. However, RLC's bankruptcy would have triggered RTC’s obligations as a guarantor of the June 1982 lease, so the waiver of defaults represented some consideration flowing from GECC to RTC.
. We do not doubt that the district court regarded the bankruptcy court’s decision as sustainable under either a "clearly erroneous" or de novo standard of review. The district court held that the evidence taken during the hearing "amply support[ed]" the bankruptcy judge's findings.
. We might reach a different result had we concluded that "an error of law [had] impaired the judgment of the trial court on a mixed question of law or fact....” 9 C.A. Wright & A. Miller, Federal Practice and Procedure § 2589 at 755 (1971).
. "[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.” Anderson, — U.S. at -, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed.2d 746 (1948)).
. The Court's reasoning in Anderson parallels that found in 9 C.A. Wright & A. Miller, Federal Practice and Procedure § 2587 at 747-749 (1971).
. A debtor in possession enjoys the powers of a trustee under 11 U.S.C. § 1107, except those withheld by 11 U.S.C. § 1106.
. The bank creditors contend that RTC, to which they have also lent money, is itself in default of its obligations to them and may file for bankruptcy in the future. If the bank creditors want court supervision of RTC’s activities, they can commence an involuntary bankruptcy case against RTC if the requirements of 11 U.S.C. § 303 are met.
. 11 U.S.C. § 1104 permits the appointment of a trustee, of course, in the event of debtor misconduct.
. Although the Curlew case suggests that a debtor-in-possession’s decisions should be subject to greater supervision by the bankruptcy court than a trustee’s, 14 Bankr. at 509-511, we see no reason to invoke in the ordinary case the greater supervision permitted by 11 U.S.C. § 1107. Our view is consonant with the House and Senate Reports on § 1107(a), which state that:
This section places a debtor in possession in the shoes of a trustee in every way. The debtor is given the rights and powers of a chapter 11 trustee. He is required to perform the functions and duties of a chapter 11 trustee (except the investigative duties). He is also subject to any limitations on a chapter 11 trustee, and to such other limitations and conditions as the court prescribes.
H.R.REP. No. 595, 95th Cong., 1st Sess. 404 (1977), reprinted in 1978 U.S.CODE CONG. & AD.NEWS 5787, 5963, 6360; S.REP. No. 989, 95th Cong., 2d Sess. 116 (1978), reprinted in 1978 U.S.CODE CONG. & AD.NEWS 5787, 5902 (citation omitted).
11 U.S.C. § 363(c) permits a trustee operating the debtor’s business to sell property of the estate in the ordinary course of business without notice or court approval. Even assuming that a lease agreement increasing the debtor’s inventory by less than ten percent represents a transaction not in the ordinary course of the debtor’s business, 11 U.S.C. § 363(b) authorizes the debtor to sell or exchange property of the estate (i.e., its right to receive rentals from subleases of the cars it holds under the original lease agreement) with court approval. Even for a sale of all the debtor’s assets, a considerably more radical action that the modification of a lease, those courts that have permitted such a sale under § 363(b) read the section as requiring only that the bankruptcy court consider whether there is an emergency, whether other buyers have been solicited, and whether the sale is in the best interests of the estate. In re Ancor Exploration Co., 30 B.R. 802, 808 (Bankr.N.D. Okia.1983). See also In re Charlesbank Laundry Co., 37 B.R. 20, 22 (Bankr.Mass.1983). The question whether a sale of all assets may be approved under § 363(b) of course remains open in this Circuit. See In re Braniff Airways, Inc., 700 F.2d 935, 939 (5th Cir.1983).
. Matter of Southern Biotech, Inc., 37 B.R. 318 (Bankr.M.D.Fla.1983), adopts an "economic soundness" standard for the approval of a trustee’s proposal to purchase assets, other than in the ordinary course of business, in order to continue to operate the debtor’s business. That proposed transaction resembles the debtor’s offer here to lease assets in order to maintain its pre-bankruptcy level of inventory, although we are disinclined to hold, on the record before us, that the proposed lease is a transaction outside of the ordinary course of business. In announcing the "economic soundness” test, the Biotech court evidently meant to scrutinize the transaction more carefully than it would under the "business judgment” standard.
Upon examination of the analysis that the court actually applied in that case, however, we are unable to detect any difference between the analysis undertaken under the “economic soundness" test and that which we would undertake in applying the business judgment test in the circumstances of the case. The court considered the risks of the proposed transaction, the available alternatives, and the danger of prejudice to the objecting parties, who, like the creditors here, had no protected interest in the cash to be expended to purchase the assets. See infra note 12. It concluded, as we would, that the purchase was a valid business decision.
Because we cannot clearly demarcate the difference between an "economic soundness" and a “business judgment” analysis, we see no reason to muddy the waters by introducing another level of scrutiny into the approval process.
. Nothing in the record suggests to us that the bank creditors here have an interest in rentals received from subleases of GECC cars or cash generated in the future by unencumbered cars that would make the transaction subject to the strictures on disposition of cash ■ collateral in § 363(c)(2). See In re George Ruggiere Chrysler-Plymouth, 727 F.2d 1017, 1019 (11th Cir.1984).
. We believe that the bankruptcy court’s discretion under 11 U.S.C. § 503 is broad enough to reject administrative claims that result from inequitable conduct, including entering into agreements in bad faith, when the inequitable conduct prevents the estate’s receiving the benefit that the court envisioned when it approved an agreement. See generally In re Allied Artists Industries, Inc., 35 B.R. 737 (Bankr.S.D.N.Y.1983). The bankruptcy court’s order in this case astutely reserves the right to exercise this discretion when and if GECC presents an administrative claim. If, as the bank creditors fear, GECC engages in the sharp practice of urging one interpretation of the amended lease’s waiver of existing defaults before bankruptcy court approval and another thereafter, principles of estoppel should come into play.
Moreover, we keep in mind that creditor misconduct has traditionally formed the basis for equitable subordination of a creditor’s priority status. See generally Allied Technology, Inc. v. R.B. Brunemann & Sons, 25 B.R. 484, 499 (Bankr.S.D.Ohio 1982); Matter of Multiponics, Inc., 622 F.2d 709 (5th Cir.1980).
. The bankruptcy court's order requires GECC to notify all parties in interest and the court before it declares a default under the amended lease. The broad equitable powers granted the bankruptcy court under 11 U.S.C. § 105 permit any party in interest to apply to the court to rescind its order lifting the stay in the event rehabilitation of the debtor requires such action.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_sentence
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Gilbert L. DOZIER, Defendant-Appellant.
No. 82-3419.
United States Court of Appeals, Fifth Circuit.
June 23, 1983.
Rehearing and Rehearing En Banc Denied Aug. 11, 1983.
Boren, Holthaus & Perez, James E. Boren, Baton Rouge, La., Thomas B. Rutter, Philadelphia, Pa., for defendant-appellant.
Stanford O. Bardwell, Jr., U.S. Atty., Stan Lemelle, Asst. U.S. Atty., O.E. Jack Roberts, Baton Rouge, La., for plaintiff-appellee.
Before GARZA, RANDALL and GAR-WOOD, Circuit Judges.
GARZA, Circuit Judge:
On January 30, 1980, Gilbert Dozier was charged, in a five count indictment, with violations of the Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act. On September 23, 1980, a guilty verdict was returned on counts one, two, three and five of the indictment. On count one Dozier was sentenced to five years imprisonment and fined $25,000. On count two he was given five years imprisonment to be served consecutively to the sentence imposed on count one. On count three the court suspended imposition of a sentence of imprisonment and placed Dozier on five years probation “to commence upon his release from prison.” And on count five the court suspended the imposition of a sentence. Execution of the entire sentence was suspended pending appeal, and Dozier remained free on bail.
On April 8,1982, an opinion was rendered by this court affirming Dozier’s conviction. On May 27, 1982, the government filed a motion to revoke the appeal bond and to revoke the probation of the defendant, an arrest warrant was issued and executed, and Dozier was held without bond. On June 4, 1982, the mandate was issued by this court; and on June 5,1982, a stay order was issued by the United States Supreme Court. On June 8, a supplemental and amended motion to revoke probation was filed. On June 9, 1982, the Supreme Court entered an order vacating the June 5 stay. A probation revocation hearing was conducted from June 21 through June 24,1982, and on June 24, 1982, the district court revoked Dozier’s probation. The court imposed a prison term of eight years under count three of the original indictment to be served consecutively to the two other prison terms and specified that the defendant was to serve a minimum of eighteen months on count three before parole eligibility. On count five a suspended ten year term of imprisonment was imposed, and the defendant was placed on probation for a period of five years to commence upon the defendant’s release from prison.
The motion to revoke probation charged Dozier with violations of 18 U.S.C. §§ 1341, 1342, 1502 and 1503. In brief the facts supporting the charges are as follows: Dozier solicited Huey P. Martin to influence, by any means necessary, members of the petit jury in Dozier’s trial to write and mail letters to the trial court claiming jury misconduct; Martin, in turn, solicited the help of George Davis in accomplishing this task; Davis and Martin reached a financial agreement with Dozier for carrying out this scheme in which Martin and Davis would equally share $50,000 a year for five years; Dozier supplied Martin and Davis with a list of jurors; one of the jurors was subsequently contacted; and the juror wrote the desired letter.
Dozier argues that the district court erred in revoking the sentence of probation given for his conviction on count three of the indictment. He argues that the trial court does not have the power to revoke a defendant’s probation before the defendant has commenced service of the term of probation. We disagree. This court has held on several occasions that a trial court may revoke a term of probation before the defendant begins service of the term of probation. United States v. Cartwright, 696 F.2d 344, 347-349 (5th Cir.1983); United States v. Tucker, 524 F.2d 77, 78 (5th Cir.1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976); United States v. Ross, 503 F.2d 940, 941 (5th Cir.1974).
Dozier also contends the trial judge abused his discretion by denying the defendant’s request for recusation. The defendant points to four separate incidents which he claims- require recusal. First, Agent Phipps told the trial judge that Dozier had solicited the assistance of Martin to get jurors to write letters stating that there had been jury misconduct. According to Phipps, Judge Polozola advised him that Dozier’s case was still on appeal before the Fifth Circuit and instructed him to preclude contact with the trial jurors. Second, on April 21, 1982, Phipps contacted the trial judge and advised him that a confidential informant (Davis) was under “considerable pressure” and requested the judge’s permission to bring the investigation to a logical conclusion. The judge authorized Agent Phipps to continue the investigation and contact a juror. Third, Rev. Jimison of Baton Rouge had a meeting with the judge in connection with an unrelated matter and also discussed one of the juror’s remarks to him concerning possible jury misconduct. Fourth, the juror eventually solicited contacted the judge to see if it was permissible for her to talk with Agent Phipps. The judge told her she could, but did not have to, talk with Phipps.
The statutory provisions impose a reasonable man standard for determining whether a judge should recuse himself. Parliament Insurance Company v. Hanson, 676 F.2d 1069, 1075 (5th Cir.1982). Applying this standard, we see no impropriety in the trial judge’s failure to recuse himself. Dozier was free on bond when the information complained of was related to the judge, and the information, at least to some extent, was relevant to the district court’s supervision of that bond. Furthermore, and most importantly, we can see no prejudice or bias which the trial judge developed as a result of this information.
Next, Dozier contends that the government engaged in such outrageous conduct that the lower court erred in finding a violation of probation and in revoking probation. After thoroughly reviewing the record and the applicable law, we find this contention to be totally without merit.
Finally, Dozier contends that the district court erred in finding he had committed the crimes of conspiracy and attempted burglary. All that is required for the revocation of probation is enough evidence to satisfy the district judge that the conduct of probationer has not met the conditions of probation. United States v. MacKenzie, 601 F.2d 221, 222 (5th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). Since Dozier’s solicitation of Martin to contact jurors serves as an adequate basis for the discretionary action of the district court, it is unnecessary for us to decide this claim of error advanced by the defendant. United States v. Brown, 656 F.2d 1204, 1207 (5th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982).
Finding no reversible error, the revocation of probation is affirmed.
AFFIRMED.
. After being contacted by Martin, Davis contacted Agent Phipps of the F.B.I. Agent Phipps in turn contacted the trial judge. From this time forward, Davis kept Agent Phipps informed of Dozier and Martin’s activities. Reciprocally, Phipps kept the district court informed concerning the progress of the investigation.
. At oral arguments a question arose concerning the status of the appeal of this case when the probation revocation hearing was held. The court asked the parties to file supplemental briefs on the question of whether, assuming the mandate of this court had been stayed by the United States Supreme Court, the district court had jurisdiction to revoke Dozier’s probation. The record reveals, however, the stay granted by the Supreme Court was vacated before the hearing. Since the district court reacquires jurisdiction of a case when the mandate is issued, United States v. Cook, 592 F.2d 877, 880 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979), the district court regained jurisdiction when the stay was vacated. The district court, therefore, had jurisdiction when the hearing was held.
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
JASLOW v. WATERBURY CO.
(Circuit Court of Appeals, Second Circuit.
November 2, 1925.)
No. 54.
I. Sales <@=>172 — Seller’s attempt to procure permits from British government held not to relieve buyer and his assignees of responsibility of procuring it.
Where contract for sale of rope during the war contemplated no shipment without permit from British government, and placed responsibility for securing permit on buyer and his assignees, held, that seller’s attempt to obtain permit did not relieve buyer and its assignees from responsibility of obtaining permit.
2. Sales <@=>172 — -Seller held not required to deliver goods at dock, where shipping permit was refused.
Where seller was directed by buyer or Ms assignees not to ship goods during the war without permit from British government, seller was not obliged to deliver goods at dock where British government refused permit.
3. Sales <@=>172 — Delay held to warrant rescission by seller.
Contract for sale of rope, contemplating delivery and shipment only on obtaining shipping permit from British, government, need not be performed by seller, where purchaser failed from November 14, 1916, until June 29, 1917, to obtain permit; such delay being unreasonable.
In Error to the District Court of the United States for the Southern District of New York.
Action by Joseph Jaslow against the Waterbury Company for breach of, contract. Judgment for defendant, and plaintiff brings error.
Affirmed.
Davies, Auerbaeh & Cornell, of New York City (George T. Hogg, of New York City, of counsel), for plaintiff in error.
Marsh & Wever, of New York City (Charles Capron Marsh and Rolph T. Marsh, both of New York City, of counsel), for defendant in error.
Before ROGERS, MANTON, and HAND, Circuit Judges.
MANTON, Circuit Judge.
The assignor of the plaintiff in error, one Spieler of Malino, Sweden, on March 23, 1916, made inquiries of the defendant in error concerning the purchase of 100 tons Of second grade rope. He received a price for the rope and on the next day the defendant in error wrote to him offering the rope “for your customer f. a. s. New York or Brooklyn docks.” The letter contained the phrase: “The responsibility of shipping must rest with the buyer after we make delivery to steamer dock.” Thereupon Spieler wrote to his customer, offering the rope at increased prices. The letter expressly stipulated that no order for the shipment could be executed unless there was forwarded with the order a shipping permit and other necessary papers to obtain the approval of the British authorities. It stated: “We could make shipment of these goods in about 90 days from date of receiving British approval here in New York.” On April 18, 1916, Spieler’s customer accepted the offer and thereupon renewed his negotiations with the defendant in error for the purchase of the rope, and after such negotiations wrote the defendant in error, stating:
“Referring to conversation of this morning w’ith you and your Mr. Waterbury, regarding our order of Herman Gotthardt, Malmo, Sweden, for 100 tons of your ‘Rex’ Manila rope, upon which, under date of March 24, 1916, you quoted us a price of 150 per lb., allowing us 2% per cent, as commission, we have yesterday received from Mr. Gotthardt an acceptance of this offer, to which we had added ,37%0, naming them a price of 15.37%0 per lb. f. o. b. New York in our letter to him of March 30th, which is the selling price to him, and you will please allow us the additional sum when making remittance to us.”
The defendant in error wrote and cabled Gotthardt: “We accept your orders thirty and thirty-one through Abraham Spieler, your New York agent.” Spieler wrote Gotthardt, in which letter he stated that he had passed the order to the Waterbury Company, and that it would execute the order, but they first wanted confirmation, and he requested them to confirm the order. Thereupon Gotthardt cabled defendant in error, “Confirm my bargain one hundred tons Manila basis price letter April 18,” and wrote that:
“In order to obtain a shipping permit I beg to address yourselves to Messrs. Furness, Withy & Co., 32 Broadway, New York, the agents for the Swedish-Ameriean Line in Gothenburg, with whose steamers I mean it is best to ship the goods, as they are going direct to Gothenburg from New York.”
It is thus clear, as the facts appear upqn this trial, that the defendant in error accepted Gotthardt as a buyer of the rope from it upon the terms stated to Spieler, and in turn conveyed by him to the ultimate customer. Gotthardt confirmed .the bargain, which he referred to as “my bargain” in his cablegram. Thereafter 15 tons of the rope were shipped to the corporation known as Aktiebolaget German Gotthardt, to which Gotthardt had assigned his contract. On November 14, 1916, after this shipment, the Gotthardt corporation cabled, “Ship remainder first opportunity provided shipping permit obtained insure against capture confirm wireless,” to which the defendant in error sent a cable that insurance against capture was unobtainable and stated that if the Gotthardt corporation would open with “bankers confirmed credit in New York payment as delivered f. a. s. vessel New York you assuming all risks will send balance rope against permits issued freight insurance all shipping charges your account otherwise ask cancellation order.” Gotthardt did not reply, hut assigned its contract to another Swedish corporation, and sent a cable to Spieler, which was forwarded to the defendant in error and read as follows :
“Instruct Waterbury Co. to obtain shipping permit for balance manila rope to Aktiebolaget Bachmans Repvaruafar Malmo; we guarantee payment when shipping documents presented here.”
Thereafter on January 7,1917, the Bach-mans company wrote the defendant in error that it had taken over from the Gotthardt corporation the latter’s purchase of about 85 tons of manila rope, and asked the defendant in error to ship the rope as soon as possible on Swedish steamers in three or four different lots, and that it would pay for the goods as soon as the shipping documents were presented through any bank or bankers at Malmo, Sweden, but on no account must the goods be shipped without shipping permit being first obtained. The defendant in error tried unsuccessfully to secure a permit from the British authorities for Gotthardt. It applied for a permit for the Bachmans company, but the British authorities refused to issue one. There is sufficient proof to support the position of the defendant in error that it did apply for and failed in obtaining this permit. The proof also establishes that Gotthardt had been blacklisted by the British government under date of November 10, 1916, and such blacklisting applied to any assignee of Gotthardt.
After failing thus to secure the permit, the defendant in error on February 1, 1917, wrote the Bachmans company advising it that for this reason it would cancel the contract. Copies of this letter were sent to Spieler and the Gotthardt corporation. Spieler received his copy and thereafter employed an attorney to look after his interest and the interest which he represented — the Gotthardt corporation and the Bachmans company. Thereafter there was considerable negotiation looking toward the fulfillment of the contract, but neither Spieler nor his assignees were able to secure the permit.
On April 16, 1917, the Gotthardt and Bachmans corporations assigned the contract to Spieler. Having acquired the contract, and after a delay of two months, Spieler, through his attorney, on June 29,1917, made demand for deliveries “here in New York City.” On July 19, the defendant in error wrote Spieler’s attorney, inclosing a copy, of the letter of rescission and advising Spieler’s attorney that 'now it did not consider that there is an existing contract.. It is apparent that Spieler obtained an assignment of the contract with full knowledge of the inability to obtain the permit and the defaults of his assignors in so doing. He took the contract, knowing full well-the position of the defendant in error. Thereafter Spieler, Gotthardt, the Gotthardt corporation, and the Bachmans company joined in an assignment to the plaintiff in error, whb instituted the present 'action. '
■ The theory of this action is that there was a breach of contract by nondelivery of the rope under the terms of the contract of purchase. The ease was here before, and the opinion then delivered is found in 296 P. .363. We there reversed a judgment for the plaintiff and ordered a new trial. On the new trial the learned District Judge held that the testimony was substantially the same,, and that the opinion which we delivered on the former appeal required his directing a verdict for the defendant in error, which he did.
On this writ of error, it is contended that “the situation is the reverse from what it was when the case was 'here previously before this court,” and it is argued that it was established that the British letter of assurance could have been obtained within a reasonable time before shipment and for months thereafter; that the defendant in error agreed to obtain it and make prompt shipment, but deliberately delayed doing so. It is said that the.time for shipment expired on September 17, 1916. It is argued that Gotthardt’s confirmation was received on June 19, 1916, and that within 90 days the shipment should have been made. This alleged breach by nondelivery assumes that the defendant in error was obligated to obtain the British letter of assurance. Prom the documentary proof, it is clear that the responsibility of shipping rested upon the buyers and the delivery requirement of the defendant in error was to make delivery to the steamer’s dock. This was the stipulation that Spieler made in his letter to Gotthardt when he offered to sell to him. Gotthardt, after the deal was 'closed, wrote the defendant in error to the effect that he was going to insure the goods against sea and war risk.
On this trial the evidence of the first trial was somewhat supplemented. Spieler testified: That he had a conversation with the sales manager of the defendant in error before the shipment of the rope, and in that conversation the sales manager told him that they had obtained authority and were going to make the shipment, and asked him to advise Gotthardt that they were going to take out the insurance. This was on July 18, 1916. That on October 12, 1916, after the shipment of 15 tons, he asked the sales manager to prepare and ship the balance of the rope As quickly as possible, and the sales manager replied that'the defendant in error was not going to manufacture any more rope until the 15 tons had been accepted and paid for. On cross-examination, he testified that the representative of the defendant in error never said any different than that the responsibility of shipping must rest with the buyer after they had made delivery to the steamer dock. The contract between the parties placed the responsibility and the duty on the plaintiff in error and his assignors to obtain or cause to be obtained the necessary shipping permit. What the defendant in error did in assisting or attempting-to obtain the permit in no way relieved the buyer or his assignors of the responsibility of obtaining the permit. Assistance of this character was not an assumption of such obligation.
Apparently at no time after the first shipment was made was it possible to obtain this British permit and therefore the defendant in error was never in a position to do more than to make delivery at the ship’s dock. No difficulty was experienced in obtaining the permit for the first 15 tons in the summer of 1916. The application therefor was made in July) but the shipment did not go forward until September, 1916. There is no criticism of the defendant in error not shipping the balance prior to November, 1916. Permits could not be obtained after November, 1916. It was not possible to obtain the permit for 100 tons when the 15 tons were shipped unless the entire 100 tons were shipped in one lot and on that vessel. The permit had to name the ship and describe the goods, and it was understood from the beginning that the 100 tons were not to be shipped as one lot, but were to go forward in small carload lots. The direction for shipment from the Gotthardt corporation and the Bachmans company expressly directed the defendant in error' to ship the goods in three or four different lots. There could be no default in the delivery after November 14, 1916, when the assignor of the plaintiff in error advised the defendant in error not to ship unless the British Admiralty gave a permit: After that day they would not give a permit; therefore the ship would not accept the goods and the defendant in error was not obliged to deliver goods at the steamer dock under the circumstances.
The assignors of the plaintiff in error were in default on February 1, 1917. At the time of the assignment to Spieler by Gotthardt and Bachmans corporations, there was no contract right of recovery against the defendant in error to be assigned. On June 29, 1917, when demand was made by Spieler for the delivery in New York City of the rope, there had been such unreasonable delay— from November 14,1916, until June 29, 1917 that, even if the shipping permit had been available then, the defendant in error was excused from performance. Earnshaw v. United States, 146 U. S. 60, 13 S. Ct. 14, 36 L. Ed. 887; Jaslow v. Waterbury (C. C. A.) 296 F. 363; Edwards Mfg. Co. v. Bradford Co. (C. C. A.) 294 F. 176.
We have examined the other errors assigned, where claim is made that error was committed in the admission and exclusion of evidence, but we find no force in the arguments advanced.
Judgment affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
In re Herbert E. RUSSELL, Debtor. Thomas S. STREETMAN, Trustee for the Estate of Herbert E. Russell, Debtor, Appellant, v. Herbert E. RUSSELL, Appellee.
No. 91-2457.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 7, 1992.
Decided Feb. 20, 1992.
Thomas S. Streetman and William S. Meeks, Crossett, Ark., for appellant.
Susan Gordon Gunter, Little Rock, Ark., for appellee.
Before WOLLMAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and BEAM, Circuit Judge.
BRIGHT, Senior Circuit Judge.
Thomas S. Streetman (Trustee), appellant and trustee of Herbert E. Russell’s (Russell) bankruptcy estate, appeals from the district court’s dismissal, of Count V of appellant’s amended complaint, for failure to state a claim. Count V sought punitive damages from Russell for his fraudulent concealment of estate assets. The order appealed from is not a final decision under 28 U.S.C. § 1291 (1988), nor is it appealable under the collateral order doctrine. Accordingly, we hold that this court lacks jurisdiction to entertain the appeal and we dismiss this appeal.
I. BACKGROUND
Trustee filed this action on June 11, 1990 seeking recovery of sums of money that Russell owed to the estate and revocation of Russell’s discharge in bankruptcy for failure to comply with the settlement agreement and fraudulent concealment of estate assets by Russell. On November 23, 1990, Russell filed a motion to dismiss, which included a request for a jury trial. After the bankruptcy court certified the case to the district court to determine whether Russell was entitled to a jury trial, Trustee filed a motion to remand, asserting that no jury trial issue existed. Trustee then filed an amended complaint adding Count V, which sought punitive damages for the fraudulent concealment. Russell filed a motion to dismiss. In a memorandum opinion and order dated May 23, 1991, the district court granted the motion to dismiss, only as to Count V, for failure to state a claim upon which relief could be granted, reasoning that the bankruptcy code does not provide for punitive damages under these circumstances and that Trustee had failed to raise any other grounds upon which jurisdiction could be based. Fed.R.Civ.P. 12(b)(6). Trustee then filed this timely appeal.
II. DISCUSSION
This court has a duty to examine its jurisdiction, and may do so on its own motion if necessary. 8th Cir. Rule 47A(a). See Faysound Ltd. v. Falcon Jet Corp., 940 F.2d 339, 341 n. 2 (8th Cir.1991). We are obligated to dismiss an appeal if it is not within our jurisdiction. Id.
The courts of appeals have jurisdiction to hear appeals from final decisions of the district courts of the United States. 28 U.S.C. § 1291. The district court’s dismissal of Count V for failure to state a claim does not constitute a final judgment on the merits of the entire lawsuit; nor did the district court enter a Rule 54(b) order directing the entry of final judgment as to that count. Id. Thus, the dismissal is not appealable as a final order.
The. collateral order doctrine, first announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), represents a narrow exception to the final judgment rule of section 1291. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). The Eighth Circuit recognizes this exception to the extent that the order appealed from affects “ ‘rights that will be irretrievably lost in the absence of an immediate appeal.’ ” United States v. Archer-Daniels-Midland Co., 785 F.2d 206, 210 (8th Cir.1985) (quoting Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985)). The district court order must also “ ‘conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.’ ” Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)).
The requested remedy of punitive damages, contained in Count V, will not be irretrievably lost if its dismissal is not immediately appealable. Moreover, the claim for punitive damages is not separable from and collateral to the common law fraud claim in the remainder of the case. The common law fraud claim may be defeated, mooting out the punitive damages claim. Appellate consideration should be deferred until the rest of the case is adjudicated before the bankruptcy court.
III. CONCLUSION
Accordingly, the appeal is dismissed.
. The Hon. Oren Harris, Senior United States District Judge for the Western District of Arkansas.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_respond2_8_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
John E. ENGLISH and Francis Dorenbach, Personal Representative of the Estate of Mary E. English, Deceased, Appellees, v. 21ST PHOENIX CORPORATION and Hanson Development Company, a New Jersey Corporation, Appellants.
No. 78-1221.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 19, 1978.
Decided Jan. 10, 1979.
Rehearing and Rehearing En Banc Denied Feb. 12, 1979.
Sidney Feldshuh (argued), New York City, Richard L. Schmeling, Lincoln, Neb., and Stephan Garber, New York City, on brief, for appellants.
Rollin R. Bailey of Bailey, Polsky, Huff, Cada & Todd, Lincoln, Neb., for appellees.
Before GIBSON, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.
GIBSON, Chief Judge.
Appellants, the Hanson Development Company, a Delaware corporation, and the Hanson Development Company, a New Jersey corporation, appeal from entry of summary judgment in the amount of $670,000 in favor of appellees as beneficiaries of a lease guarantee against appellants as the guarantors. Jurisdiction in the district court was established by diversity of citizenship. 28 U.S.C. § 1332. On appeal, the Hanson companies challenge the District Court’s jurisdiction and the imposition of various sanctions for their failure to comply with certain discovery orders and contend that the amount of the judgment was excessive.
In 1969, three brothers formed the Delaware corporation for the principal purpose of developing and promoting shopping centers in various states. The Hanson brothers continue to own this corporation as sole stockholders of the JEH Development Company. The New Jersey corporation, carrying the same corporate name, was organized in 1972, and is a wholly-owned subsidiary of the Delaware corporation. This New Jersey corporation shares not only the name, but the business purpose, officers and address of the Delaware corporation. The Hanson brothers also own 70% of S & H Shopping Centers, Inc. (hereinafter referred to as S & H), another corporation formed for the purpose of developing shopping centers that shares the address of the Hanson companies. This latter corporation entered into an agreement with the Delaware corporation whereby in exchange for its providing services as an experienced developer, the Delaware corporation would receive 70% of the profits on any shopping centers developed by S & H.
In 1971, the Hanson brothers became interested in some Nebraska property located in Grand Island. One of the brothers inspected the site and called the owners of the property, Grand Island Mall, Inc., regarding the leasing of the property as a shopping center site. Negotiations resulted in the execution on May 24, 1972, by Grand Island Mall, Inc. and Donald Hanson as vice-president of the Delaware corporation, of an agreement providing for a 99 year lease. The agreement included addenda amending portions of the basic agreement. One amendment provided that the lease would “be entered into by and between Grand Island Mall, Inc. and S & H Shopping Centers, Inc., a Delaware corporation, and guaranteed by The Hanson Development Company, rather than entered into as Hanson Development Company as Tenant.” Donald L. Hanson signed both the original agreement and the addenda as vice-president of the Delaware corporation.
On October 18, 1972, Grand Island Mall, Inc. leased its property to EES Grand Island Associates Ltd. This limited partnership assigned all its interest in the lease to 5 & H, its general partner. Thereafter, S 6 H mortgaged the property to United Jersey Mortgage Company in order to finance a loan of $3,200,000 for the development of the shopping center, and in 1973 began constructing improvements and leasing space to retail businesses. This project became known as the Grand Island Mall and was one of three shopping centers started by S & H in Nebraska in 1972.
In accordance with the terms of its agreement with S & H, the Delaware corporation provided services to aid the development of these Nebraska projects. It maintained a regional office in Kansas City, Missouri, and personnel from this office traveled to Nebraska to inspect construction, review specifications, meet with tenants, and generally facilitate rapid and orderly progress. Another office opened in Omaha, Nebraska, and the Delaware corporation paid the salaries of the four employees working out of this office. These employees primarily handled contacting prospective tenants, leasing space and coordinating construction for these tenants. As consideration for the services rendered on behalf of the three shopping centers in Nebraska, the Delaware corporation received in excess of $1.7 million. In addition to providing services, the Delaware corporation in the course of its business of promoting and developing shopping centers guaranteed the performance of some of the agreements and undertakings of S & H with regard to these projects. The Hanson Development Company guaranteed the full performance of the lease of the Grand Island property, including the obligation of the lessee to make mortgage payments on the mortgage in favor of the United Jersey Mortgage Company. This guarantee was signed by John F. Hanson, president of the Hanson Development Company, and imprinted with the seal of the Delaware corporation. On August 20,1974, John E. English and his sister, Mary E. English, traded property with Grand Island Mall, Inc., and thereby succeeded to all interests in the Grand Island property previously held by Grand Island Mall, Inc. Subsequently, S & H defaulted on the mortgage payments. In an action in the United States District Court for the District of Nebraska, with the Englishes and the Hanson company as parties defendant, the United Jersey Mortgage Company obtained a judgment of foreclosure as a result of which the land was sold at forced sale.
On October 12, 1976, the Englishes filed the complaint for damages in the present action, naming the Delaware corporation and S & H as defendants. Neither defendant responded, and a default judgment was entered against both. The Delaware corporation later entered an appearance and the District Court granted its motion to set aside entry of the default. In the course of discovery, the Englishes learned of the existence of the New Jersey corporation with the identical name and address, and amended the complaint to add it as a party defendant.
Discovery commenced immediately upon filing of the complaint, when plaintiffs-appellees served upon the Delaware corporation interrogatories and a request for production and copying of documents, but discovery did not proceed unimpeded. Lack of cooperation, inadequate responses, and dilatoriness on the part of the appellants hampered the orderly progression of discovery. Numerous times, the District Court issued orders to compel discovery, and also granted many of the appellants’ motions for extensions of time. Finally, after appellants’ continued failure to comply with court-ordered deadlines for discovery, the District Court imposed sanctions designed to establish as admitted those facts which appellees sought to establish by the discovery denied them. Thereafter, the District Court granted appellees’ motion for summary judgment on the issue of liability and the issue of damages was tried to the court. Appellants contest the summary judgment on the basis that the District Court abused its discretion by its imposition of sanctions, and that sanctions cannot be utilized to establish jurisdictional facts. It also contests the amount of damages awarded.
Pursuant to Fed.R.Civ.P.37(b)(2) (A), on December 27, 1978, the District Court entered an order establishing that the Delaware corporation was doing business in Nebraska and its involvement was substantial enough to give the court personal jurisdiction. The history of the discovery proceedings leading to this order amply supports the District Court’s exercise of discretion.
On January 18, 1977, appellees moved to compel answers to the first set of interrogatories. In response, the court ordered that answers or objections be made by February 11, 1977. On that date appellants moved for an extension of time until the 14th of February. The court granted this extension, but received nothing on the 14th. Instead, on February 22, appellants filed vague and unresponsive answers together with a motion for an order granting an extension of time for the filing of the answers until the 22nd. Thereafter the parties entered into a stipulation that provided that the Delaware corporation would correct improper answers and properly frame its objections to interrogatories by May 23, 1977, and would answer fully and completely all interrogatories not objected to by June 9, 1977. On May 18, 1977, the court approved this stipulation and ordered compliance therewith. Appellant practically ignored the deadlines established by the stipulation, and on May 25 filed three corrected but unsworn answers and objections to eight of the interrogatories. On June 23, 1977, appellees moved for an order to show cause why the defendants should not be held in contempt of court because of their failure to comply with the orders, rules and procedures of the court and their failure to provide discovery. On August 10, 1977, appellees moved for an order treating the issue of personal jurisdiction as established for the reason that appellants were deliberately avoiding and delaying discovery of the facts pertaining to this issue by responding to interrogatories in an unresponsive, inconsistent, evasive, and incomplete manner. On August 17, the court denied appellees’ motions and made further orders providing for the progression of discovery. On August 19, 1977, appellees again moved to compel answers to the first set of interrogatories. The court responded in a detailed memorandum and order requiring answers to specific questions and clarification of specific discrepancies to be made by September 6, 1977. On September 14, 1977, appellants filed a few answers. Appellees filed a second set of interrogatories on October 6, 1977. The Delaware corporation again ignored the schedule for discovery set out in Rule 33(a), Fed.R.Civ.P., and appellees on November 16,1977, moved to compel answers. In turn, the Delaware corporation moved for a protective order. Following a hearing on these motions, on November 28, 1977, the court ordered the Delaware corporation to answer certain questions by December 5, 1977. On December 13, 1977, appellees moved to impose sanctions for failure to comply with the November 28 order. Finally, on December 27, the court imposed the sanction establishing personal jurisdiction.
Fed.R.Civ.P. 37(b) provides comprehensively for sanctions for failure to obey discovery orders, and the imposition of these sanctions should not be reversed unless there has been an abuse of discretion. Denton v. Mr. Swiss of Missouri, Inc., 564 F.2d 236, 239 (8th Cir. 1977); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 993-94 (8th Cir. 1975); 4A Moore’s Federal Practice 137.08 at 37-112-13 (2d ed. 1978). The court below carefully followed the procedures outlined in Rule 37. Exercising its discretion, it granted extensions of time for discovery, held hearings on discovery motions, entered orders to compel discovery, and finally, after the continued failure of appellants to respect discovery orders, it imposed a sanction drawn narrowly to establish as admitted the fact that the Delaware corporation had contacts with Nebraska sufficient to support in personam jurisdiction.
The imposition of this sanction did not deny the Delaware corporation its fifth amendment rights to due process. In accord with the sound policy favoring the use of less severe and harsh sanctions than dismissal or default, the District Court carefully tailored its order to address the specific information sought by discovery. See Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir. 1977).
The proceedings leading to the imposition of the sanction establishing the Delaware corporation as the guarantor were substantially the same as that leading to the sanction regarding jurisdiction. Appellants obstructed the discovery of certain documents by the use of dilatory and contumacious tactics. Appellees sought these documents to prove that the Delaware corporation and not the New Jersey corporation made the guarantee. The District Court repeatedly ordered the production of these documents. Finally, after holding a hearing and finding that no good cause was shown for the failure to produce the documents as ordered, it imposed the sanction. The District Court did not abuse its discretion.
Appellants also challenge the amount of the damages awarded. They contend that the damages assessed against the guarantor must be limited to the amount of the default judgment against the principal, S & H, and that the evidence does not support even that amount. The joint and several default judgment rendered against S & H and The Hanson Development Company was in the sum of $593,802. The Delaware corporation chose to have this judgment against it set aside and go to trial. At trial, expert testimony from a real estate appraiser established that appellees suffered a loss of $670,000 due to the default of S & H on the mortgage payments. The record clearly supports the District Court’s judgment for damages in this amount.
We have reviewed the remaining arguments of appellants and find them to be without merit. The District Court’s findings of fact are not clearly erroneous and it applied correct principles of law.
All motions are overruled except that all costs shall be taxed against the appellants.
Judgment affirmed.
. During the course of litigation the Hanson Development Company, a Delaware corporation, changed its name to 21st Phoenix Corporation. For convenience, this party will be referred to as the Delaware corporation.
. The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska.
. Fed.R.Civ.P. 37(b)(2)(A) states:
2. Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order[.]
. Although sanctions were not applied to the New Jersey corporation, the defendants in effect confess judgment against that corporation and claim that the New Jersey corporation was the guarantor instead of the Delaware corporation. The New Jersey corporation apparently has no assets. This acknowledgment serves as a basis for establishing in personam jurisdiction over the New Jersey corporation in showing participatory activities by the corporations in financing and constructing this shopping center in Nebraska.
. Appellants’ argument that the District Court lacked jurisdiction to enter the sanction order is equally meritless. Unlike subject matter jurisdiction, in personam jurisdiction may be obtained by actions of a party amounting to a waiver, and a court has jurisdiction to enter an order finding a waiver. United States v. Gajewski, 419 F.2d 1088, 1091 (8th Cir. 1969), cert. denied, 397 U.S. 1040, 90 S.Ct. 1361, 25 L.Ed.2d 651 (1970); 2 Moore’s Federal Practice 9 4.02[3] at R-48 (2d ed. 1978). The same principles give jurisdiction to the District Court to enter a sanction order. It is established beyond cavil that a court has jurisdiction to determine jurisdiction, and a party cannot hope to avoid the jurisdiction of a court by concealing evidence regarding its activities in the forum state.
. We also note that the exercise of in personam jurisdiction over the Delaware corporation does not offend traditional notions of fair play and substantial justice. The complete record below reveals that the Delaware corporation had sufficient minimum contacts with Nebraska. International Shoe Company v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). It invoked the benefits and protections of Nebraska law by reason of its activities regarding the shopping centers, Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and entered into a contract with Grand Island Mall, Inc. regarding lease of property in Nebraska that obviously had a “substantial connection” with the forum state, McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). These contacts with Nebraska are substantial and intimately related to this cause of action instituted by residents of Nebraska. The exercise of jurisdiction was entirely consistent with the requirements of due process. See Caesar’s World, Inc. v. Spencer Foods, Inc., 498 F.2d 1176, 1180-81 (8th Cir. 1974).
. The appellees claimed that both corporations made the guarantee but that if only one had made it then the Delaware corporation was the guarantor. During the course of discovery, appellants took the position that the New Jersey corporation had made the guarantee. Since the New Jersey corporation was a financially insecure, wholly-owned subsidiary of the Delaware corporation, this conduct reveals a sitúation fraught with possibilities for fraudulent schemes. These two corporations, with the same name, officers and address, one having substantial assets and the other essentially bankrupt, could easily be confused by persons dealing with them. It appears that the owners and officers attempted fraudulently to manage this confusion to their personal benefit. They cannot now argue that the finding against the Delaware corporation renders improper a judgment against the New Jersey corporation for which they confessed an obligation.
. On November 2, 1977, the District Court clearly informed appellants of the consequences of non-compliance. Its order stated in part:
If the defendants, The Hanson Development Company, a New Jersey corporation, and The Hanson Development Company, a Delaware corporation, fail to deliver the items mentioned in subparagraph A of this order within the time ordered, an order will be entered, absent a showing of good cause to the contrary, that the guarantees identified as exhibits C, D, and N, which are attached to the first amended complaint, are the guarantees of the defendant The Hanson Development Company, a Delaware corporation, and that fact shall be taken to be established for the purpose of this action in accordance with the claims of the plaintiffs.
In addition to the above court order the following facts were shown:
(1) The guarantee bore the corporate seal of the Delaware corporation.
(2) The officers signing the guarantee were officers of the Delaware corporation.
(3) The Delaware corporation had an interest in S & H Shopping Centers, Inc. as referred to in the guarantee.
(4) The financial statement furnished in connection with the guarantee was that of the Delaware corporation.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
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songer_crossapp
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A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
UNITED STATES of America, Appellee, v. James PINKERMAN, Appellant. UNITED STATES of America, Appellee, v. Frank MARTIN, Appellant.
Nos. 10867, 10890.
United States Court of Appeals Fourth Circuit.
Argued Jan. 9, 1967.
Decided March 7, 1967.
Jackson L. Kiser, Martinsville, (Young, Kiser & Frith, Martinsville, Va., on brief), for appellants (Court-appointed in No. 10,890). Va.
Thomas B. Mason, U. S. Atty., for appellee.
Before SOBELOFF, BRYAN and J. SPENCER BELL, Circuit Judges.
J. SPENCER BELL, Circuit Judge:
Defendants Pinkerman and Martin were convicted of violations of the Internal Revenue laws of the United States in a jury trial. Pinkerman was charged in a three-count indictment with unlawful possession, custody and control of an unregistered still in violation of 26 U.S.C. §§ 5179(a) and 5601(a) (1) (1964), carrying on the business of a distiller without posting bond in violation of 26 U.S.C. §§ 5601(a) (4) and 5173(a) (1964), and conspiracy to violate the Internal Revenue laws pertaining to distilled spirits in violation of 18 U.S.C. § 371 (1964). He was convicted on all three counts. Martin was charged with and convicted of conspiracy to violate the Internal Revenue laws pertaining to distilled spirits. The United States district court entered judgment upon the verdicts, sentencing Pinkerman to imprisonment for a three-year term and Martin to imprisonment for a one-year term.
Pinkerman, who was 77 at the time of trial, had for more than 50 years been a breeder of game chickens used for cockfighting. He subleased from one John Welch some chicken coops and sheds located on the William T. (Tom) Blackwell farm in Campbell County, Virginia. Also on the farm was a barn which was located in the vicinity of the coops and which housed an unregistered still. There is no evidence that the barn was among those parts of the premises that Pinkerman subleased. On March 31, 1966, several special investigators of the Alcohol and Tobacco Tax Division of the United States Treasury Department raided the barn pursuant to a search warrant that had been procured three days earlier, discovered the still, and arrested Pinkerman, who was found inside the barn standing over a stack of cardboard cases. The agent testified that he appeared to be in the process of closing the flaps of one of the cases. Pinkerman contended that he had nothing to do with the still and that he and his employee, defendant Martin, were present on the premises only for the purpose of caring for his 26 chickens housed in the rented coops. He contended that he had entered the barn in order to ascertain whether or not it contained a water spigot which could be used to supply water to the chicken coops. He testified that he was among the cardboard cases at the time of the raid because he realized that he was in a place where he should not be and was attempting to hide. That Pinkerman was actually engaged in raising chickens on the farm is not seriously disputed.
The defendants on appeal assert that the district court erred in three respects: (1) the district court failed to find the search warrant illegal and hence erroneously admitted evidence obtained as a result of the raid; (2) the court allowed the prosecuting attorney to alert the jury to the fact that Pinkerman had made a statement at the time of his arrest; and (3) the court failed to strike the possession charge against Pinkerman even though the only evidence supporting the charge was the fact of Pinker-man’s presence at the still site.
Protection against unreasonable searches and seizures, those not based upon probable cause, is guaranteed by the fourth amendment of the United States Constitution. A search warrant may be issued only on the basis of an affidavit that sufficiently states probable cause for the necessity of the search. Fed.R.Crim.P. 41(c); Baysden v. United States, 271 F.2d 325 (4 Cir. 1959). It is not sufficient for the affiant merely to state summarily that he has probable cause to believe that there are reasonable grounds for the search. He must state underlying facts which substantiate his conclusion. See Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The United States Supreme Court in its most recent pronouncement on the subject has made it clear, however, that the requirements of the fourth amendment are “practical and not abstract” and that courts should not interpret affidavits for search warrants in a “hypertechnical” manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). In Ventresca, the Court said:
“If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
“ * * * [T]he courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 108-109, 85 S.Ct. at 746.
An application of the principles laid down by the Court in Ventresca to the search warrant in the case at bar leads us to conclude that the warrant meets the constitutional requirement that it be based on probable cause. The substantive portion of the affidavit on which the warrant is based follows:
“On March 23, 1966, at approximately 9:05 P.M., I observed a 1948 Chevrolet Panel truck, green in color, headed north on U. S. Route 29, in Altavista, Va. I recognized this vehicle as one owned by Joe Hill, RFD Axton, Va., a person having a reputation with me as a liquor law violator. I followed this vehicle North on Rt. 29 but lost sight of it somewhere in the vicinity of the William T. Blackwell farm on U. S. Route 29 north of Altavista, Va. Through the rear windows of the vehicle I saw the tops of 2 barrels.
“On March 26, 1966, I received information, by telephone, from A&TT Special Investigator Raymond Reynolds, Martinsville, Virginia, who said he had been told by an Informer that James Pinkerman, George Eskew, Mose Martin and others had an unregistered distillery set up on “Tom” Blackwell’s chicken farm south of Lynchburg, Va.
“On March 26, 1966, at approximately 8:40 P.M., I observed a white male, similar in appearance to James Pinkerman, come out of the back door of William T. “Tom” Blackwell’s residence and walk to a group of outbuildings about 100 yards in the rear of the residence. About 5 minutes later I observed a colored male moving around the outbuildings.
“At approximately 9:00 P.M., I received a radio message from Special Investigator Woodward A&TT, that a green Chevrolet Panel truck has just left Blackwell’s and headed south on U. S. Route 29. Shortly thereafter I was in an open untended field to the rear of the outbuildings. I could smell the odor of mash and another odor similar to that of a fuel oil burner coming from the direction of the outbuildings.
“Later on this date I received a radio message from Special Investigator Raymond Reynolds that at approximately 10:45 P.M., a panel truck similar in description to the one above arrived at James Pinkerman’s residence at RFD Axton, Va., then went to the residence of George Eskew, Rt. 1, Axton, Va.”
The defendants’ argument is, in effect, that since no one of the paragraphs of the affidavit is in itself sufficient to support a finding of probable cause, the entire affidavit is insufficient. While we may well agree that no single paragraph of the affidavit would support the warrant, we cannot agree that this vitiates the adequacy of the affidavit as a whole. We do not quarrel with the axiom invoked by defendants that “the whole cannot exceed the sum of its parts,” but we do challenge the logic of the corollary, which the defendants have implicitly proffered, that the whole cannot exceed any of its parts.
The affidavit in question contains the statement of the affiant, an Alcohol and Tobacco Tax Division special investigator, that he smelled “the odor of mash and another odor similar to that of a fuel oil burner coming from the direction of the outbuildings.” Presence of the odor of mash unquestionably constitutes strong evidence of the existence of probable cause. See Ventresea v. United States, supra. Cf. United States v. Mullin, 329 F.2d 295 (4 Cir. 1964). In addition the affiant states that a truck owned by “a person having a reputation with me as a liquor law violator” and containing barrels made a trip to the farm and back to Pinkerman’s house. The affidavit also contains information from “an Informer” that there was an unregistered distillery at the farm. While information from an unknown informer whose reliability is not attested to by a recitation of “underlying circumstances” showing him worthy of belief is clearly not sufficient in itself to sustain the validity of a search warrant, Aguilar v. State of Texas, supra, we think it can be considered as supporting evidence of probable cause here, especial- ' ly in view of the fact that its veracity is corroborated by other facts contained in the affidavit.
The defendants’ second contention is that the colloquy between the court and counsel regarding a statement made by Pinkerman to a federal agent at the time of his arrest was prejudicial because the jury could well have received the impression that Pinkerman had in fact made some sort of confession or incriminating statement and that he was not being candid and was attempting to hide something. For the reasons stated in our recent decision in Moorer v. South Carolina, 4 Cir., 368 F.2d 458, we agree with the defendants. Although the statement itself was never revealed to the jury, the discussion of its existence could have impressed the jury in a manner prejudicial to the defendants.
The district court was not taken by surprise with regard to the existence of the statement or defendants’ objection to its admissibility. Before trial began, counsel for the defendants told the court in chambers that he opposed the admission of the statement on the ground that Pinkerman had not been warned of his right to counsel as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and requested that the prosecuting attorney not be allowed to mention the existence of such a statement during his opening statement. The court agreed that the statement should not be mentioned in the prosecuting attorney’s opening statement, but stated that he did not think a decision on the applicability of Miranda, could be made at that time. During the exchange complained of, however, the court allowed the prosecuting attorney to do the very thing that the defense attorney had sought to prevent. Moreover, the district court never clarified the matter for the jury by notifying them of his final ruling made in chambers that the statement was inadmissible under Miranda; nor was the jury given any cautionary instructions. At the very least, the district court should have granted immediately the request of defendants’ counsel to be heard in chambers when the statement was first mentioned in the presence of the jury. The better practice would have been for the court to determine in chambers prior to trial the admissibility of any statements made by the defendants which the prosecution intended to offer into evidence.
Since Martin, an illiterate Negro, was employed by Pinkerman and acted entirely under his supervision, it is agreed that he and Pinkerman stand in the same position in this appeal except as to the contention that the evidence was insufficient to convict Pinkerman of possession, custody and control of an unregistered still. We therefore grant new trials for both Pinkerman and Mar» tin because we have concluded that the discussion concerning Pinkerman’s statement was prejudicial to both.
Defendant Pinkerman contends that his conviction of unlawful possession, custody and control of an unregistered still cannot stand because the only evidence to support it was his presence at the still site. Since Pinkerman received a consolidated sentence for all three convictions, we reach this question only because we have granted a new trial on other grounds. We have examined the record carefully and have determined that the evidence contained in the record will not support the conviction for unlawful possession. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). The district court is directed to enter a judgment of acquittal for Pinkerman on the unlawful possession count of the indictment.
The cases are remanded for a new trial.
Remanded.
. The colloquy took place during the prosecuting attorney’s direct examination of Special Investigator Woodward:
“Q. At that point did he make any comments in your presence?
“MR. KISER: I object. I would like to be heard in chambers, if Your Honor please.
“THE COURT: Did you advise him that he was entitled to a lawyer?
“THE WITNESS: No, sir. I did not intend to question Mr. Pinkerman and I did not.
“MR. MASON: And you asked him no questions.
“THE WITNESS: No, sir.
“THE COURT: Have you addressed another question to this witness? Is there another question pending?
“MR. MASON: I believe there is. I can ask it at this time — I may be repeating myself.
“THE COURT: All right.
“MR. MASON: Did Mr. Pinkerman under those circumstances and at that time make any comment in your presence?
“THE WITNESS : Yes, sir.
“MR. KISER: Objection to any comment. “THE COURT: What is the basis of your objection?
“MR. KISER: United States v. Miranda and Miranda v. The State of Arizona.
“THE COURT: But he was not interrogated.
“MR. KISER: It is our position this applies to volunteered as well as questioned testimony.
“MR. MASON: I don’t believe the case so held.
“MR. KISER: I would prefer to retire to chambers if the Court does require argument.
“THE COURT: I am going to sustain the objection. Miranda goes so far and it certainly requires the advice as to the defendant being entitled to a lawyer and I am going to sustain the objection.
“MR. MASON: I feel like Mr. Kiser —I have given this considerable thought and would like to be heard further unless the Court has made a final ruling.
“THE COURT: No, I haven’t, but can’t you go to something else and get to that about time for lunch recess?
“MR. MASON: Yes, sir, I think so.”
. “Mr. KISER: If the Court please, at the Court’s direction and through Mr. Mason’s willingness we have been furnished with letters setting forth the verbal statements made by our clients at about the time of arrest. Now, it is very possible that Mr. Mason in his opening statement is going to comment on these admissions, and we think in view of the recent case of Miranda v. The State of Arizona there might be some right sharp question as to the admissibility of these statements and we would like the Court to restrict the United States Attorney in his opening statement to a general statement where these admissions would not be mentioned until such time as the Court can rule on the admissibility of this evidence.
“THE COURT: What about that, Mr. Mason? “MR. MASON: I had planned to state that certain incriminating statements were made without going into what the statements were .and let the evidence show that.
“THE COURT: I believe it would be better not to do that.
“MR. MASON: All right, sir.
“THE COURT: I don’t know — I was interested to see what you said in your letters, and I am not unaware of Miranda. Whether they come within that rule or not I am not prepared to say and I don’t think we can in here, but in the event objections should be made and sustained it would be much better that they not have been mentioned. I don’t think it is necessary in opening statement.
“MR. MASON: All right.”
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
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sc_partywinning
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
CITY OF TACOMA v. TAXPAYERS OF TACOMA et al.
No. 509.
Argued April 30, 1958.
Decided June 23, 1958.
Northcutt Ely argued the cause for petitioner. With him on the brief were Marshall McCormick, Paul J. Nolan, Robert L. McCarty, C. Emerson Duncan, II, and Charles F. Wheatley, Jr.
By special leave of Court, 356 U. S. 916, Oscar H. Davis argued the cause for the United States and the Federal Power Commission, as amici curiae, urging reversal. Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade, Lionel Kestenbaum, Willard D. Gatchell and Howard E. Wahrenbrock filed a brief for the Federal Power Commission, as amicus curiae, urging reversal.
John S. Lynch, Jr. and E. P. Donnelly, Assistant Attorney General of Washington, argued the cause for respondents. Mr. Lynch filed a brief for the Taxpayers of Tacoma, Washington, respondents. With Mr. Donnelly on a brief were John J. O’Connell, Attorney General, and Philip R. Meade, Assistant Attorney General, for the State of Washington et al., respondents; and joining them in this brief were the States of Iowa, by Norman A. Erbe, Attorney General; Michigan, by Paul L. Adams, Attorney General; Montana, by Forrest H. Anderson, Attorney General; Nevada, by Harvey Dickerson, Attorney General; New Mexico, by Fred M. Standley, Attorney General; Vermont, by Frederick M. Reed, Attorney General; Virginia, by A. S. Harrison, Jr., Attorney General; and Wisconsin, by Stewart G. Honeck, Attorney General, and Roy G. Tulane and James H. McDermott, Assistant Attorneys General.
Mr. Justice Whittaker
delivered the opinion of the Court.
This is the latest episode in litigation beginning in 1948 which has been waged in five tribunals and has produced more than 125 printed pages of administrative and judicial opinions. It concerns the plan of the City of Tacoma, a municipal corporation in the State of Washington, to construct a power project on the Cowlitz River, a navigable water of the United States, in accordance with a license issued by the Federal Power Commission under the Federal Power Act. The question presented for decision here is whether under the facts of this case the City of Tacoma has acquired federal eminent domain power and capacity to take, upon the payment of just compensation, a fish hatchery owned and operated by the State of Washington, by virtue of the license issued to the City under the Federal Power Act and more particularly § 21 thereof. The project cannot be built without taking the hatchery because it necessarily must be inundated by a reservoir that will be created by one of the project’s dams.
The question has arisen under the following circumstances and proceedings. Having earlier filed its declaration of intention to construct the project, the City of Tacoma, a “municipality” in the State of Washington, on December 28, 1948, filed with the Commission, under § 4 (e) of the Federal Power Act, an application for a federal license to construct a power project, including two dams (known as Mossyrock and Mayfield) and appurtenant facilities, on the Cowlitz River.
The Mossyrock development was proposed to be located at Mile 65 and to consist of a concrete dam across the Cowlitz rising 510 feet above bedrock (creating a reservoir covering about 10,000 acres extending 21 miles upstream) and an integral powerhouse containing, initially, three generators each of 75,000-kilowatt capacity and provisions for a fourth generator of like capacity. The Mayfield development was proposed to be located at Mile 52 and to consist of a concrete dam across the Cowlitz rising 240 feet above bedrock (creating a reservoir covering about 2,200 acres extending 13.5 miles upstream to the tailwaters of the Mossyrock Dam, which would inundate the State’s fish hatchery) and an integral powerhouse containing, initially, three generators each of 40,000-kilowatt capacity and provisions for a fourth generator of like capacity. The project — estimated to cost $146,000,000, including $9,465,000 for devices to enable anadromous fish to pass to spawning grounds upstream and their young to pass to the sea, and for new fish hatcheries — would thus have initial capacity to produce 345,000 kilowatts or 474,000 horsepower, and eventually 460,000 kilowatts or 632,000 horsepower, of electrical energy.
The Commission ordered a public hearing to determine whether the license should issue, and gave notice of the hearing to the Governor of the State of Washington. In response, the Attorney General of the State filed an intervening petition, in the names of the State’s Directors of Fisheries and of Game, alleging in substance that the State’s Departments of Fisheries and of Game are subdivisions of the sovereign State, and that the respective Directors are charged with the duty of enforcing its laws concerning the conservation of fish and game; that the dams and fish-handling facilities proposed by the City would destroy fishery resources of the State; that construction of proposed dams would violate Wash. Rev. Code 90.28.060, requiring the State’s permission to construct any dam for the storage of 10 acre-feet or more of water, and Wash. Rev. Code 75.20.010, prohibiting the construction of any dam higher than 25 feet across any river tributary to the Columbia, downstream from the McNary Dam, within the migratory range of anadromous fish; and “[t]hat the reservoirs which would be created by the proposed dams would inundate a valuable and irreplaceable fish hatchery owned by the State of Washington, as well as... productive spawning areas.” The City's answer admitted that the State’s fish hatchery would be inundated by the Mayfield Reservoir. The State’s Attorney General also appointed a Special Assistant Attorney General to represent all persons of the State whose views were in conflict with the State’s official position.
Upon the issues thus framed a hearing, consuming 24 days, was conducted by a Commission examiner, throughout which the Attorney General of the State, by his designated assistant, actively participated in opposition to the application, and the Special Assistant Attorney General, appointed for the purpose stated, also participated in the proceedings before the Commission. Thereafter the Commission, on November 28,1951, rendered its opinion, findings, and order granting the license. Re City of Tacoma, 92 P. U. R. (N. S.) 79. The State petitioned for a rehearing which was denied.
Pursuant to § 313 of the Act, 16 U. S. C. § 825i, the State, in its proper name and also on behalf of its Directors of Fisheries and of Game, petitioned for review of the Commission's order by the Court of Appeals for the Ninth Circuit. The City intervened. The State there challenged the Commission’s authority to issue the license principally upon the grounds that the City had not complied with applicable state laws nor obtained state permits and approvals required by state statptes; that “Tacoma, as a creature of the State of Washington, cannot act in opposition to the policy of the State or in derogation of its laws” (emphasis added); and that the evidence was not sufficient to sustain the Commission’s findings and order. The Court of Appeals, holding that “state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States” and that there was ample evidence to sustain the Commission’s findings and its order, affirmed. Washington Department of Game v. Federal Power Comm’n, 207 F. 2d 391, 396. (Emphasis added.) The State then petitioned this Court for a writ of certiorari which was denied. 347 U. S. 936.
While the petition for review was pending in the Ninth Circuit, the City, on February 3, 1952, commenced an action in the Superior Court of Pierce County, Washington, against the taxpayers of Tacoma and the State's Directors of Fisheries and of Game, seeking a judgment declaring valid a large issue of revenue bonds, authorized by the City’s Ordinance (No. 14386) of January 9, 1952, to be issued and sold by Tacoma to finance the construction of the Cowlitz project — a proceeding specifically authorized by Wash. Rev. Code 7.25.010 through 7.25.040. As required by those statutes the court named representative taxpayers of Tacoma as class defendants and also appointed their counsel who.demurred to the City’s complaint. The State’s Directors of Fisheries and of Game, acting through an Assistant Attorney General- of the State, filed an answer and also a cross-complaint (reasserting substantially the same objections that they and the State had made before the Commission, and that had been made in, and rejected by, the Court of Appeals on their petition for review) to which the City demurred. The judge of the Superior Court sustained the Taxpayers’ demurrer and dismissed the suit. Tacoma appealed to the Supreme Court of Washington. That court, three justices dissenting, reversed the judgment and remanded the cause with instructions to overrule the Taxpayers’ demurrer and to proceed further consistently with the court’s opinion. City of Tacoma v. Taxpayers of Tacoma, 43 Wash. 2d 468, 262 P. 2d 214.
Following that opinion the City, on June 21, 1955, accepted bids for a block of its revenue bonds totaling $15,000,000, and on the next day it awarded contracts for construction of the Mayfield Dam aggregating $16,120,870. Two days later, June 24, 1955, the Directors “acting for and on behalf of the State” moved in the Superior Court for, and obtained, ex parte, an order enjoining the City, pending determination of the suit, from proceeding to construct the Cowlitz project or to sell any of its revenue bonds. That order was modified on June 30, 1955, to permit such construction work as would not in any manner interfere with the bed or waters of the Cowlitz River. Promptly thereafter the City began construction of the project, within the limits of the injunction, and had expended about $7,000,000 thereon to the time the work was completely enjoined as later stated.
On July 27, 1955, Tacoma amended its complaint merely to assert the intervening facts that the Commission, upon application of the City which was opposed by the State, had, on the basis of delays entailed by this litigation, entered an order on February 24, 1954, amending Articles 28 and 33 of the City’s license by extending the time for commencing and for completing the project to December 31, 1955, and December 31, 1958, respectively, and that the City had amended its pertinent ordinance (No. 14386) accordingly and in other minor respects. On August 8, 1955, on motion made by.the State’s Attorney General (in the names of the Directors of Fisheries and of Game), the State, “in its sovereign capacity,” was formally made a defendant in the action. The State and those Directors answered, and also filed a cross-complaint again reviving the objections previously made by the Directors in their earlier cross-complaint and alleging further that the project would interfere with navigation of the Cowlitz River in violation of Wash. Rev. Code 80.40.010. Upon pretrial conference the Superior Court found that the navigation issue was the only one open and ordered that the evidence at the trial be limited to that issue. On January 11, 1956, the case was tried and the testimony taken was limited solely to the navigation issue. On March 6, 1956, the court, holding that the State’s statutes proscribing the construction of dams (note 11) are “inapplicable,” but that the City “is acting illegally and in excess of its authority in the construction of the... project as presently proposed for the reason that said project would necessarily impede, obstruct or interfere with public navigation contrary to the proviso of R. C. W. 80.40.010 et seq.,” entered judgment in favor of the Taxpayers and the State, and enjoined the City from proceeding to construct the project.
Tacoma appealed, and the Taxpayers, the State and its Directors cross-appealed, to the Supreme Court of Washington. On February 7, 1957, that court, three justices dissenting, affirmed. City of Tacoma v. Taxpayers of Tacoma, 49 Wash. 2d 781, 307 P. 2d 567. It agreed that the Washington-statutes proscribing the construction of dams (note 11) were “inapplicable... insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of [the City’s] License for said project, or insofar as they would enable State officials to exercise a veto over said project” (49 Wash. 2d, at 801, 307 P. 2d, at 577), but it disapproved the action of the trial court in sustaining the State’s objection that the project would interfere with navigation in violation of Wash. Rev. Code 80.40.010. However, upon the declared premise that though the trial court’s judgment was based upon an erroneous ground it would sustain it if correct on any ground within the pleadings and established by proof, it held that, though the State Legislature has given the City the right to construct and operate facilities for the production and distribution of electric power and a general power of condemnation for those purposes, “the legislature has [not] expressly authorized a municipal corporation to condemn state-owned land previously dedicated to a public use [and] that the city of Tacoma has not been endowed with [State] statutory capacity to condemn [the State’s fish hatchery]”; that “the city of Tacoma [may not] receive the power and capacity to condemn [the State’s fish hatchery] previously dedicated to a public use, from the license issued to it by the Federal power commission in the absence of such power and capacity under state statutes” (emphasis added); and that the City’s “inability so to act can be remedied only by state legislation that expands its capacity.” (Emphasis in original.) 49 Wash. 2d, at 798, 799, 307 P. 2d, at 576, 577. This, it said, “is not a question of the right of the Federal government to control all phases of activity on navigable streams, nor a question of its power, under the Federal power act, to delegate that right. It only questions the capacity of a municipal corporation of this state to act under such license when its exercise requires the condemnation of state-owned property dedicated to a public use.” 49 Wash. 2d, at 798, 307 P. 2d, at 576. (Emphasis added.) We granted certiorari. 355 U. S. 888.
At the outset respondents ask dismissal of our writ on the ground that the case is moot. They argue that it is evident the Cowlitz project cannot be completed by December 31, 1958, which is the date now stated in the license for its completion. There is no merit in this contention because § 13 of the Federal Power Act, 41 Stat. 1071, 16 U. S. C. § 806, expressly provides that “the period for the completion of construction carried on in good faith and with reasonable diligence may be extended by the Commission when not incompatible with the public interests,” and an application by the City is now pending before the Commission for an extension of completion time based upon delays entailed by these proceedings.
We come now to the core of the controversy between the parties, namely, whether the license issued by the Commission under the Federal Power Act to the City of Tacoma gave it capacity to act under that federal license in constructing the project and delegated to it federal eminent domain power to take, upon the payment of just compensation, the State’s fish hatchery — essential to the construction of the project — in the absence of state legislation specifically conferring such authority.
At the threshold of this controversy petitioner, the City, asserts that, under the express terms of § 313 (b) of the Act, 16 U. S. C. § 8251 (b), this question has been finally determined by the decision of the Court of Appeals (207 F. 2d 391) and this Court’s denial of certiorari (347 U. S. 936); and that respondents’ cross-complaints, and proceedings thereon, in the subsequent bond validation suit in the Washington courts have been only impermissible collateral attacks upon the final judgment of the Court of Appeals. If this assertion is correct, the judgment of the Supreme Court of Washington now before us would necessarily have to be reversed, for obviously that court, like this one, may not, in such a case, re-examine and decide a question which has been finally determined by a court of competent jurisdiction in earlier litigation between the parties. We must turn then to an examination of petitioner’s contention.
It is no longer open to question that the Federal Government under the Commerce Clause of the Constitution (Art. I, § 8, cl. 3) has dominion, to the exclusion of the States, over navigable waters of the United States. Gibbons v. Ogden, 9 Wheat. 1, 196; New Jersey v. Sargent, 269 U. S. 328, 337; United States v. Appalachian Electric Power Co., 311 U. S. 377, 424; First Iowa Hydro-Electric Cooperative v. Federal Power Comm’n, 328 U. S. 152, 173; United States v. Twin City Power Co., 350 U. S. 222, 224-225. Congress has elected to exercise this power under the detailed and comprehensive plan for development of the Nation’s water resources, which it prescribed in the Federal Power Act, to be administered by the Federal Power Commission. First Iowa Hydro-Electric Cooperative v. Federal Power Comm’n, supra; United States v. Appalachian Electric Power Co., supra.
Section 313 (b) of that Act, upon which petitioner’s claim of finality depends, provides, in pertinent part:
“(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located... by filing in such court, within 60 days after the order of [the] Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall forthwith be served upon any member of the Commission and thereupon the Commission shall certify and file with the court a transcript of the record upon which the order complained of was entered. Upon the filing of such transcript such court shall have exclusive jurisdiction to affirm, modify, or set aside such order in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.... The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in sections 846 and 8Iff of Title 28.” 16 U. S. C. § 825Z (b). (Emphasis added.)
This statute is written in simple words of plain meaning and leaves no room to doubt the congressional purpose and intent. It can hardly be doubted that Congress, acting within its constitutional powers, may prescribe the procedures and conditions under which,.and the courts in which, judicial review of administrative orders may be had. Cf. Labor Board v. Cheney California Lumber Co., 327 U. S. 385, 388. So acting, Congress in § 313 (b) prescribed the specific, complete and exclusive mode for judicial review of the Commission’s orders. Safe Harbor Water Power Corp. v. Federal Power Comm’n, 124 F. 2d 800, 804, cert. denied, 316 U. S. 663. It there provided that any party aggrieved by the Commission’s order may have judicial review, upon all issues raised before the Commission in the motion for rehearing, by the Court of Appeals which “shall have exclusive jurisdiction to affirm, modify, or set aside such order in whole or in part,” and that “[t]he judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification....” (Emphasis added.) It thereby necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review. Hence, upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all. For Congress, acting within its powers, has declared that the Court of Appeals shall have “exclusive jurisdiction” to review such orders, and that its judgment “shall be final,” subject to review by this Court upon certiorari or certification. Such statutory finality need not be labeled res judicata, estoppel, collateral estoppel, waiver or the like either by Congress or the courts.
The State participated in the hearing before the Commission. It there vigorously objected to the issuance of the license upon the grounds, among others, “[t]hat the reservoirs which would be created by the proposed dams would inundate a valuable and irreplaceable fish hatchery owned by the State” and, hence, necessarily require the taking of it by the City under the license sought; that the City had not complied with the applicable laws of the State respecting construction of the project and performance of the acts necessarily incident thereto (note 11); and that the City was not authorized by the laws of the State to engage in such business. The Commission rejected these contentions of the State and made all the findings required by the Act to support its order granting the license (note 9) including the finding that:
“The Applicant... has submitted satisfactory evidence of compliance with the requirements of all applicable State laws insofar as necessary to effect the purposes of a license for the project; and it is a municipality within the meaning of Section 3 (7) of the Act.”
The State then petitioned the Commission for a rehearing, reviving the foregoing contentions and raising others. The petition was denied.
Thereafter, the State, following the procedures prescribed by § 313 (b), petitioned the proper Court of Appeals for review of the Commission’s findings and order. After full hearing, that court rejected all contentions there raised by the State, did not disturb any of the Commission’s findings, and affirmed its order without modification. Washington Department of Game v. Federal Power Comm’n, 207 F. 2d 391. It made particular mention of, and approved, the Commission’s finding, as rephrased by the court, that the City had submitted “such evidence of compliance with state law as, in the Commission’s judgment, would be ‘appropriate to effect the purposes of a Federal license on the navigable waters of the United States.’ ” Id., at 396.
Moreover, in its briefs in the Court of Appeals, the State urged reversal of the Commission’s order on the grounds that the City “has not shown, nor could it show, that [it] has availed itself of... any right to take or destroy the property of the State of Washington [and that] Tacoma, as a creature of the State of Washington, cannot act [under the license] in opposition to the policy of the State or in derogation of its laws.” (Emphasis added.) In rejecting these contentions — that the City does not have “any right to take or destroy property of the State” and “cannot act” in accordance with the terms of its federal license — the Court of Appeals said:
“Again, we turn to the First Iowa case, supra. There, too, the applicant for a federal license was a creature of the state and the chief opposition came from the state itself. Yet, the Supreme Court permitted the applicant to act inconsistently with the declared policy of its creator, and to prevail in obtaining a license.
“Consistent with the First Iowa case, supra, we conclude that the state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States.” Id., at 396. (Emphasis added.)
We think these recitals show that the very issue upon which respondents stand here was raised and litigated in the Court of Appeals and decided by its judgment. But even if it might be thought that this issue was not raised in the Court of Appeals, it cannot be doubted that it could and should have been, for that was the court to which Congress had given “exclusive jurisdiction to affirm, modify, or set aside” the Commission’s order. And the State may not reserve the point, for another round of piecemeal litigation, by remaining silent on the issue while its action to review and reverse the Commission’s order was pending in that court — which had “exclusive jurisdiction” of the proceeding and whose judgment therein as declared by Congress “shall be final,” subject to review by this Court upon certiorari or certification. After the Court of Appeals’ judgment was rendered, the State petitioned this Court for a writ of certiorari which was denied. 347 U. S. 936.
These were precisely the proceedings prescribed by Congress in § 313 (b) of the Act for judicial review of the Commission’s findings and order. They resulted in affirmance. That result, Congress has declared, “shall be final.”
But respondents say that the Court of Appeals did not decide the question of legal capacity of the City to act under the license and, therefore, its decision is not final on that question, but left it open to further litigation. They rely upon the following language of the opinion:
“However, we do not touch the question as to the legal capacity of the City of Tacoma to initiate and act under the license once it is granted. There may be limitations in the City Charter, for instance, as to indebtedness limitations. Questions of this nature may be inquired into by the Commission as relevant to the practicability of the plan, but the Commission has no power to adjudicate them.” Id., at 396-397.
We believe that respondents’ construction of this language is in error. The questioned language expressly refers to possible “indebtedness limitations” in the City’s Charter and “questions of this nature,” not to the right of the City to receive and perform, as licensee of the Federal Government under the Federal Power Act, the federal rights determined by the Commission and delegated to the City as specified in the license. That this was the meaning of the court, if its meaning might otherwise be doubtful, is made certain by the facts that the court did not disturb a single one of the Commission’s findings; affirmed its order without modification; and said, in the sentence immediately preceding the questioned language: “Consistent with the First Iowa case, supra, we conclude that the state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a' navigable stream since the stream is under the dominion of the United States.” Id., at 396. (Emphasis added.)
The final judgment of the Court of Appeals was effective, not only against the State, but also against its citizens, including the taxpayers of Tacoma, for they, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment. Wyoming v. Colorado, 286 U. S. 494, 506-509; cf. Missouri v. Illinois, 180 U. S. 208, 241; Kansas v. Colorado, 185 U. S. 125, 142; s. c. 206 U. S. 46, 49; Georgia v. Tennessee Copper Co., 206 U. S. 230, 237; Hudson Water Co. v. McCarter, 209 U. S. 349, 355; Pennsylvania v. West Virginia, 262 U. S. 553, 591, 595; North Dakota v. Minnesota, 263 U. S. 365, 373.
We conclude that the judgment of the Court of Appeals, upon this Court’s denial of the State’s petition for certiorari, became final under § 313 (b) of the Act, and is binding upon the State of Washington, its Directors of Fisheries and of Game, and its citizens, including the taxpayers of Tacoma; and that the objections and claims to the contrary asserted in the cross-complaints of the State, its Directors of Fisheries and of Game, and the Taxpayers of Tacoma, in this bond validation suit, were impermissible collateral attacks upon, and de novo litigation between the same parties of issues determined by, the final judgment of the Court of Appeals. Therefore, the judgment of the Supreme Court of Washington is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
41 Stat. 1063 et seq., 16 U. S. C. § 791a et seq.
41 Stat. 1074, 16 U. S. C. § 814.
On August 6, 1948, the City filed with the Commission its declaration of intention to build this power project. On March 18, 1949, the Commission ruled that the Cowlitz River was navigable below the proposed project and that its construction would affect navigation and interstate commerce and, hence, could not be built without a license from the Commission, because of the provisions of §23 of the Federal Power Act. 41 Stat. 1075, 16 U. S. C. §816.
“ ‘Municipality’ [as used in the Federal Power Act] means a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power.” §3 (7), 41 Stat. 1063, 16 U. S. C. § 796 (7).
By a Washington statute all cities and towns of that State are made legally competent to “construct, condemn and purchase, purchase, acquire, add to, maintain, and operate works, plants, and facilities for the purpose of furnishing the city or town and its inhabitants, and any other persons, with gas, electricity, and other means of power and facilities for lighting, heating, fuel, and power purposes....” Wash. Rev. Code 80.40.050. Tacoma has exercised such powers since 1893.
41 Stat. 1065, 16 U. S. C. § 797 (e). That subsection, so far as presently pertinent, provides:
"The commission is authorized and empowered—
“(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the- laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States....”
The application was accompanied by the maps, plans, specifications and estimates of cost covering the proposed project, as required by § 9 (a) of the Act. 41 Stat. 1068, 16 U. S. C. § 802 (a). Those maps, plans and specifications made clear that the State’s hatchery would be inundated by the proposed Mayfield Reservoir.
The Cowlitz River is a tributary of the Columbia in southwestern Washington. It drains an area of 2,490 square miles of the western slope of the Cascade Range, and flows westerly for about 100 miles and thence southerly for 30 miles to its confluence with the Columbia at Longview which is about 65 miles above the mouth of the Columbia. It is conceded to be navigable at all points below the projected May-field Dam and, at the point of confluence with the Columbia, is a tidal river with an average flow of about 10,000 cubic feet per second.
The Commission’s opinion discussed at length the State’s basic contention that the river should be left in its natural state for the unobstructed use and propagation of anadromous fish and, upon that contention, concluded:
“The question posed does not appear to us to be between all power and no fish but rather between large power benefits (needed particularly for defense purposes), important flood control benefits and navigation benefits, with incidental recreation and intangible benefits, balanced against some fish losses, or a retention of the stream in its present natural condition until such time in the fairly near future when economic pressures will force its full utilization. With proper testing and experimentation by the city of Tacoma, in co-operation with interested state and.Federal agencies, a fishery protective program can be evolved which will prevent undue loss of fishery values in relation to the other values. For these reasons we are issuing the license with certain conditions which are set forth in our accompanying order.” 92 P. U. R. (N. S.) 79, 85.
In its order granting the license the Commission made 66 findings in which, among other things, it found that the Cowlitz is a navigable water of the United States below the site of the proposed project and that the dams and reservoirs will affect the interests of interstate or foreign commerce (see §§ 4 (e) and 23 of the Act, 41 Stat. 1065, 1075, 16 U. S. C. §§ 797 (e), 816); that a critical shortage of electric* power exists on the west side of the Cascade Range; that the project “will be an exceptionally valuable addition to the Northwest Region power supply”; that “none of the hydroelectric projects suggested for construction in lieu of the Cowlitz Project can be constructed as quickly or as economically as the Cowlitz Project”; that the project has been approved by the Chief of Engineers and the Secretary of the Army (see §4 (e), 41 Stat. 1065, 16 U. S. C. §797 (e)); that the project is financially and economically feasible; that “the Applicant... has submitted satisfactory evidence of compliance with the requirements of all applicable State laws insofar as necessary to effect the purposes of a license for the project [see § 9 (b), 41 Stat. 1068, 16 U. S. C. § 802 (b)] and it is a municipality within the meaning of Section 3 (7) of the Act”; and that “[u]nder present circumstances and conditions and upon the terms and conditions hereinafter included in the license, the project is best adapted to a comprehensive plan for improving or developing the waterway involved for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the conservation and preservation of fish and wildlife resources, and for other beneficial public uses including recreational purposes.” See § 10 (a), 41 Stat. 1068, 16 U. S. C. § 803 (a). (Emphasis added.)
The license was issued on November 28, 1951, for a period of 50 years from January 1, 1952 — the first day of the month in which the City filed with the Commission its ordinance, No. 14386, enacted on January 9, 1952, formally accepting the license and all its requirements and conditions. See § 6, 41 Stat. 1067, 16 U. S. C. § 799. The license, among other things, incorporated the City’s maps, plans, specifications, and estimates of cost for the construction of the project (see § 9 (a), 41 Stat. 1068, 16 U. S. C. § 802 (a)); incorporated by reference all provisions of the Federal Power Act (see § 6, 41 Stat. 1067, 16 U. S. C. § 799); required construction
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_counsel1
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Thomas R. SHERWOOD, et al., Appellants v. The WASHINGTON POST.
No. 88-7042.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 10, 1989.
Decided April 11, 1989.
Robert E. Paul, with whom Eugene R. Fidell, Washington, D.C., was on the brief, for appellants.
John G. Kester, Washington, D.C., for appellee.
Before ROBINSON, EDWARDS, and SENTELLE, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM:
The appellant, Thomas R. Sherwood, a reporter for the Washington Post (“appel-lee” or “the Post”), brought this action against the Post claiming that he was entitled to overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 213(a)(1) (1982). On cross-motions for summary judgment, the District Court found that Sherwood was employed “in a bona fide ... professional capacity” within the meaning of section 13(a)(1) of the FLSA, and therefore was exempt from the provisions of the statute requiring overtime pay. The appellant argues that, since facts material to the determination of professional status were controverted, the case could not be decided on summary judgment and the District Court thus erred in failing to direct the parties to proceed to trial. We agree.
The appellee argues that “the District Court’s findings are binding unless ‘clearly erroneous’ under Rule 52(a), Fed.R. Civ.P.” Brief for Appellee at 8. This assertion is dead wrong. This case was decided by the District Court on a motion for summary judgment under Rule 56, Fed.R. Civ.P. 56. A summary judgment is upheld on appeal only where there is no genuine issue of material fact and, viewing the evidence in the light most favorable to the appellant, the appellee is entitled to prevail as a matter of law. See, e.g., Byers v. Burleson, 713 F.2d 856, 859 (D.C.Cir.1983). In other words, the appellate court must determine whether any genuine issues of material fact exist, or, if not, whether the law was properly applied. And the party against whom summary judgment was granted has the benefit of all reasonable evidentiary inferences that can be drawn in his favor. See McConnell v. Howard University, 818 F.2d 58, 59 n. 1 (D.C.Cir.1987). The “clearly erroneous” standard of Rule 52(a) is not applicable in connection with a review of a summary judgment. Toney v. Bergland, 645 F.2d 1063, 1066 (D.C.Cir.1981); Tygrett v. Washington, 543 F.2d 840, 844 n. 17 (D.C.Cir.1974).
Because we find that the District Court was faced with genuine issues of material fact, inappropriate for disposal on summary judgment, we reverse and remand for a trial on the merits.
I. Background
Sherwood came to The Washington Post in 1974, after having served as a reporter and editor for the Atlanta Constitution for ten years. He also worked briefly as an administrative assistant to a Member of Congress. Sherwood reports for the Post, a daily newspaper, with his by-line appearing on most of his stories. His reporting duties involve originating story ideas, deciding on what facts to gather, organizing the facts in a way comprehensible to the general reader, and exercising judgment in deciding what information to include in stories and whether to expand or drop a story. See Joint Appendix (“J.A.”) at 168-71.
On October 1, 1986, Sherwood filed a complaint in District Court charging the Post with violations of the FLSA. The suit challenged the Post’s refusal to pay overtime, as required by the FLSA, when an employee works more than forty hours in any week. The Post responded that Sherwood, like other Post employees who joined the suit, was exempt from the FLSA overtime provisions because he was “employed in a bona fide ... professional capacity.” 29 U.S.C. § 213(a)(1).
In order to bring the legal issues into focus, the parties agreed to limit discovery to a representative group of twenty plaintiffs and to bifurcate the issues so that the “professional” status of reporters/editors would be considered separately from that of photographers. The parties also agreed to waive jury trial and to submit the facts to the District Court to determine whether the respective groups were exempt from the FLSA overtime provisions. The parties developed a detailed record, deposed thirteen reporter/editor plaintiffs, took depositions from the Editor and the Managing Editor of the Post, and submitted numerous affidavits and other materials.
Upon completion of discovery, both parties moved for summary judgment. In addition to the record compiled by the parties, Sherwood filed a statement of genuine issues in which he contested certain Post portrayals of the material facts, particularly the characterization of his work as original and creative. See Plaintiffs Statement of Genuine Issues, Sherwood v. Washington Post, 677 F.Supp. 9 (D.D.C.1988) (No. 88-2701); J.A. 1242-44. The Post filed a statement, in turn, challenging Sherwood’s account of the material facts. See Response to Plaintiffs Statement of Material Facts in Support of Summary Judgment, Sherwood, 677 F.Supp. 9; J.A. 1245.
On January 13, 1988, the District Court entered summary judgment for the Post. See Sherwood v. Washington Post, 677 F.Supp. 9 (D.D.C.1988). The trial court purported to find that there were no genuine issues of material fact as to the thirteen deposed reporter/editor plaintiffs, who were professional employees within the meaning of the FLSA. However, in sorting through the “detailed record” and the “elaborately documented cross-motions for summary judgment,” id. at 9, the District Court found it “undisputed” that the thirteen reporters/editors “produce original and creative writing of high quality within the meaning of the regulations” and that “their performance as writers is individual, interpretative and analytical both in the writing itself and in the process by which the writing must be prepared.” Id. at 14. Moreover, the trial court commented that payment for overtime may not be gained “by the plaintiffs” deprecation of the creative, responsible work they perform at the Post.” Id. at 15. Applying the FLSA exemption for artistic professions, which exempts as “professional” any employment that is “original and creative” in character and the result of which “depends primarily on the invention, imagination, or talent of the employee,” 29 C.F.R. § 541.303 (1987), the District Court ruled that the thirteen reporters/editors were “professionals” under the Act and, thus, were not entitled to overtime payments. The instant appeal followed.
II. Analysis
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is upheld on appeal only “where there is no genuine issue of material fact, and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law.” Byers, 713 F.2d at 859 (citations omitted). Accordingly, in our review of summary judgment, “the party against whom summary judgment was granted has the benefit of all reasonable evidentiary inferences that can be drawn in his favor.” Toney, 645 F.2d at 1066 (citation omitted).
The parties seem to agree that the legal standard for determining whether Sherwood’s job comes within the professional exemption under the FLSA is whether his work is predominantly original or creative. See 29 C.F.R. § 541.3(a)(2). The regulation implementing the FLSA provides:
The term “employee employed in a bona fide ... professional capacity” in section 13(a)(1) of the Act shall mean any employee:
(a) Whose primary duty consists of the performance of:
* * # * * *
(2) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee....
Id. (emphasis added). Moreover, interpretations issued by the Department of Labor provide that “[njewspaper writing of the exempt type must ... be ‘‘predominantly original and creative in character.’ Only writing which is analytical, interpretative or highly individualized is considered to be creative in nature.” See id. § 541.303(f)(1) (emphasis added). Under the foregoing interpretations of the statute, a person’s job is “professional” by virtue of being original or creative only when the original or creative aspects constitute the primary or predominant functions of the job.
The District Court sought to apply this legal standard in disposing of the case on summary judgment. However, in doing so, the trial court made critical findings with respect to material facts. For example, the trial court found that it is “undisputed” that reporters “produce original and creative writing of high quality within the meaning of the regulations” and that “their performance as writers is individual, interpretative and analytical.” 677 F.Supp. at 14. This finding resolves one of the principal disputes between the parties, and is surely not based on an “undisputed” record on this point.
In Plaintiffs’ Statement of Genuine Issues, Sherwood specifically “eontest[s] defendant’s statement of material facts,” stating, among other things, that “[wjhile the work of Post journalists involves intellectual activity, plaintiffs’ work is not predominantly intellectual to the extent that the Post claims such work to be predominantly original, creative or analytical.” J.A. 1242. Indeed, Sherwood recounted in the record that “[i]f you are accurate, brief, and clear, then you have performed your job to report information.” J.A. 218. He also pointed out that the Post separately labels news stories that are creative or analytical as “news analysis” or “commentary,” J.A. 506-07, and that he has had relatively few stories identified as such in the newspaper. In response to Sherwood’s claims, the Post asserted that “[rjeporters and editors at the Post are expected to and do produce original and creative reporting on news events.” J.A. 1250. Thus, the parties sharply disagreed over whether Sherwood’s reporting is original or creative, and whether it is predominantly so.
On a motion for summary judgment, the District Court cannot deny the existence of disputes over material facts by making findings of fact and then labelling them “undisputed.” Nor is the trial court free to make critical findings of fact in deciding a motion for summary judgment. In acting on a motion for summary judgment, “[t]he court’s function is limited to ascertaining whether any factual issue pertinent to the controversy exists; it does not extend to resolution of any such issue.” Nyhus v. Travel Management Corp., 466 F.2d 440, 442 (D.C.Cir.1972) (footnote omitted). Accordingly, the District Court must either establish that there are no genuine issues of material fact, thus warranting summary judgment, or try the case fully, so that its findings may be reviewed under Rule 52 of the Federal Rules of Civil Procedure. In the instant case, the trial court did neither.
III. Conclusion
On the record before us, we cannot uphold the summary judgment. Drawing all evidentiary inferences in favor of the appellant, as required, it is certainly debatable whether Sherwood’s work is primarily original and creative. Because we find that the District Court faced a genuine issue of material fact, we reverse the District Court’s grant of summary judgment for the Post and remand the case for trial on the merits.
Reversed.
. By order entered September 8, 1988, this court dismissed all appellants other than Sherwood for failure to comply with Rule 3(c) of the Federal Rules of Appellate Procedure. On November 10, 1988, the court denied the appellants’ Petition for Rehearing and Suggestion for Rehearing Bn Banc.
. The Department of Labor interpretations also suggest that
(1) ... [n]ewspaper writers commonly performing work which is original and creative within the meaning of § 541.3 are editorial writers, columnists, critics, and "top flight” writers of analytical and interpretative articles.
(2) The reporting of news, the rewriting of stories received from various sources, or the routine editorial work of a newspaper is not predominantly original and creative in character within the meaning of § 541.3 and must be considered as nonexempt work....
Section 541.303(f)(1) & (2).
. We leave it to the District Court to decide in the first instance what difference there is, if any, between "primary" and "predominant” in the application of the original and creative professional exemption.
. The appellee, somewhat disingenuously, attempts to characterize the trial court’s decision as a judgment on a stipulated record, thus subject to limited review under the “clearly erroneous” standard of Rule 52(a). It is true that, “[i]n some circumstances cross-motions for summary judgment ... may be treated for purposes of review as a mutual request for trial on [a] stipulated ... record." Toney, 645 F.2d at 1066. But “[hjere ... the language of the district court’s opinion and the papers of the parties indicate that a true summary judgment was intended. We therefore apply a standard of review that requires us to reverse if the ... record fails to preclude a genuine issue of material fact.” Id. (citation omitted).
Furthermore, contrary to what appellee asserts, it does not matter that the District Court was faced with cross-motions for summary judgment. “The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion.” McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982). Even assuming, arguendo, that the parties sought to "concede" that no material facts were at issue when they filed cross-motions for summary judgment, the District Court obviously rejected the suggestion in advancing independent findings of fact in support of summary judgment for the Post.
. We offer no view on the merits of this case. We simply hold that the case was improperly decided on summary judgment.
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_confess
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNION MARINE & GENERAL INS. CO., Limited, v. KULJIS.
No. 7287.
Circuit Court of Appeals, Ninth Circuit.
April 12, 1934.
S. Hasket Derby, of San Francisco, Cal., and Howard G. Cosgrove of Seattle, Wash. (Derby, Sharp, Quinby & Tweedt, of San Francisco, Cal., and Cosgrove & Terhune, of Seattle, Wash, of counsel), for appellant.
Sather & Livesey, of Bellingham, Wash., for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
SAWTELLE, Circuit Judge.
June 30, 1932, appellant, defendant below, through its duly authorized agent, D. A. Duryee & Co., at Everett, Wash., issued to ap-pellee a marine insurance poliey insuring ap-pellee’s gas boat, the Tiger, against loss by fire. September 14, 1932, the boat was destroyed by fixe, and appellee successfully prosecuted in the District Court this suit to recover the amount of the poliey. Appellant contended in the trial court and contends on this appeal that the poliey ■ was voluntarily canceled by appellee prior to the loss. The trial court’s finding on this issue, assailed by appellant as unsupported by the evidence, is as follows: “That prior to the fire the plaintiff had requested the cancellation of said poliey, but some correspondence arose between the defendant and the plaintiff with relation thereto, and the policy was not can-celled prior to the said fire or at any time.”
The poliey contains the following cancellation clause: “Either party may cancel this policy by giving 10 days’ notice in writing. If cancelled at request of underwriters pro rata daily rates to be made. If cancelled at request of assured, returns to be made on basis of standard short rate scale.”
Prior to the loss, appellee had not paid the premium on the poliey. August 20, 1932, about two weeks before the boat was destroyed, .appellee wrote to Duryee & Co., appellant’s agent, as follows:'
“Regarding my insurance policy for the boat Tiger, I inquired at all the Company’s buyers and I am unable to find the poliey.
“I wish to cancel this poliey because I find I am unable to carry it any longer as the fishing season is very poor this year. I will renew this policy next year if I find I can carry it again. I am very sorry to have to cancel this poliey.”
August 30 Duryee & Co. replied thereto, as follows:
“In reply to your letter of August 29 in reference to Union Marine and General policy No. 1898, we are unable to understand where this poliey could have gone as it was mailed to you some time ago. However, we will be glad to send you a copy of the pol-iey if you so desire.
“In reference to cancellation of this policy, we wish to advise that there is a 3 per cent, guaranteed premium on the policy. This is true of all marine policies covering boats in Puget Sound this year. There is a total premium of $464.10. If the poliey is cancelled at this time, you will receive a refund of $249.90. You ean continue this poliey until the end of the fishing season at no additional cost to you. In other words, if you cancelled this policy after the 5th of November you will receive back as much money as you would if you cancelled it at this time. The reason for this is because of the 3 per cent, guaranteed premium.
“It is our suggestion that you continue the poliey at least until the end of the fishing season. Kindly advise your wishes in this matter.”
September 1 the insured again wrote Dvr-yes & Co., as follows:
“Regarding my letter of the 29th, I wish to cancel my poliey from that day on.
“But I do not understand why I have to pay so much money for a poliey which I carried for less than two months. Here in Bel-lingham people cancel their policies and they pay for only the length of time they carry it, and I intend to do the same.
“I believe there is enough refund from the last year’s poliey to pay for these two months I carried the policy. ,
“The reason I have to cancel this poliey is because I just made enough money to pay for my board and fuel, so I just ean not carry it any longer as I can not pay for it.
“I am sorry I have to cancel this policy but it is the only way out. The next time I take out a poliey I shall take it out from your company as I was very much satisfied with it.
“Hoping to hear from you soon.”
September 6 Duryee & Co. wrote the insured :
“In reply to your letter of September 1, we believe you are wrong in your statement that in Bellingham people cancel their policies and pay for only the length of time they carry the insurance. This is not true, however, under marine policies, and if you will ask any marine agent in Bellingham, they will inform you that the guaranteed premium must apply. This is true of all boats owned by individuals.
“However, we are taking this matter up with the company and will advise as soon as we hear from them.”
September 6 Duryee & Co. also wrote to J. A. Graessner Company, appellant’s agent at Seattle, Wash,, inclosing copies of the cor' responderme with appellee regarding the cancellation o£ his insurance policy, and asking that Graessner Company “look into this matter and advise in order that we may give him an answer to his letter of September 1.” September 9 Graessner Company replied thereto as follows:
“We duly received your letter of September 6 and wish to advise that if the premium on this vessel has been paid to you, we are required to demand a guaranteed premium of 3 per cent, under the terms and conditions of the Motor Vessel Agreement.
“If you have been unable to collect the premium, it will be in order to cancel the policy on a pro rata basis for nonpayment of premium, In which event, please return the policy to us immediately or a Lost Policy Receipt. We might advise however, if it is necessary' to cancel on account of non payment of premium, our company will prohibit us from writing insurance for this owner again, and we therefore sincerely trust this action will be unnecessary.
“We note this owner states certain policies issued in Bellingham have allowed owners pro rata cancellation, which undoubtedly means that the Bellingham agent has intentionally cancelled certain policies for non payment of premium.
“As you know, all boats coming within the terms of the Motor Vessel Agreement carry a guaranteed premium of 3 per cenb for Puget Sound operations.
“Trusting you will advise us final disposition of this ease, at your early convenience, we are.”
Thereafter, by letter dated September 12, two days before the loss, Duryee & Co. wrote the insured that they had picked up the policy in question “at the Mshermen’s Packing Corporation and have sent it back to the company for cancellation,” and “Will advise you the amount of the earned premium under this policy as soon as we hear from the company.”
The foregoing correspondence constitutes all the material evidence on the issue of cancellation, and we agree with appellant that this evidence is insufficient to support the finding of the court that the policy -was not in fact canceled.
The policy contains a provision that it may be canceled by either party upon ten days’ written notice. The insured’s letters to Duryee & Co., dated more than ten days pri- or to the loss, contain unmistakable language evidencing his determination to cancel the insurance. In his first letter the insured said, “I wish to cancel this policy because I find I am unable to carry it any longer;” and on September 1 he reiterated his emphatic and unequivocal request for cancellation of the policy, “Regarding my letter of the 29th, I wish to cancel my policy from that day on.” In 32 C. J. 1260, it is said: “If by statute or contract insured has the privilege of cancelling the policy at his pleasure, the company’s consent is not a prerequisite to cancellation.”
That appellant’s agents considered the policy canceled is shown by their action in taking possession of the policy on September 12 and sending it to the company for cancellation and adjustment of the premium, after having unsuccessfully attempted to persuade appellee to continue the policy in force until November 5 by paying the minimum 3 per cent, guaranteed premium.
In Parsons & Arbaugh v. Northwestern Nat. Ins. Co., 133 Iowa, 532, 110 N. W. 907, the policy contained a provision that it might be canceled at any time at the request of the insured. The court there said: “The policy of insurance was surrendered to the company for cancellation by the insured several days before ,the fire and by it accepted for that purpose, but the unearned premium had not been returned [as requested by the insured]. The insured had done all he could to effect the cancellation of the policy prior to the loss and so had the company, save that the unearned premium had not been actually paid to the insured. Though the assent of two is required to make a contract, one can terminate it. To facilitate doing so is the object of provisions concerning cancellation contained in insurance policies for these are not needed where parties ean mutually agree. * * * The insured having so requested, cancellation necessarily followed. He could do no more save surrender the policy. Having done so, the contract was canceled — was at an end. * * * The request is all that is essential to a cancellation, but the policy must be surrendered to secure the return of the unearned premium. The design of the paragraph was to enable one party to the contract to cancel it without the consent of the other, and, to this end, precisely what was necessary to accomplish this result was prescribed.”
See, also, Crown Point Iron Co. v. Ætna Ins. Co., 127 N. Y. 608, 28 N. E. 653, 14 L. R. A. 147; Gately-Haire Co. v. Niagara Fire Ins. Co., 221 N. Y. 162, 116 N. E. 1015, Ann. Cas. 1918C, 115; Johnson & Stroud v. Rhode Island Ins. Co., 174 N. C. 201, 93 S. E. 735.
The authorities relied upon by appellee are distinguishable from the case at bar. In American Trust Co. v. Life Ins. Co., 173 N. C. 558, 92 S. E. 706, 707, the policy contained no provision authorizing its rescissioor cancellation at the option of one of the parties. In Artificial Ice Co. v. Reciprocal Exchange, 192 Iowa, 1133, 184 N. W. 756, the cancellation relied upon by the insurance company was held insufficient because not in the form prescribed by the cancellation clause of the poliey. In Home Ins. Co. v. Chattachoochee Lumber Co., 126 Ga. 334, 55 S. E. 11, the loss occurred before the expiration of the five days’ notice of cancellation to the insured required by the poliey, and there was no agreement of the parties for immediate cancellation. In Barbour v. St. Paul Fire & Marine Ins. Co., 101 Wash. 46, 171 P. 1030, 1031, the question was whether the poliey had been canceled by mutual consent prior to the loss, and the court held that the evidence was insufficient to prove such cancellation, saying: “It is plain that she [the insured] intended to cancel the poliey, and that the insurance company was willing to do so. But before the insurance company would actually cancel the policy, it required that a receipt be signed. This reeeipt -was not signed, and, as nothing further was done, the poliey remained in full force and effect.”
In that ease it does not appear whether the insured had in fact a right to eaneel the pol-iey, “Assuming, but not deciding,” said the court (page 50 of 101 Wash., 171 P. 1030, 1031) “that Mrs. Barbour [the insured] had authority to order a cancellation of the policy, we do not think the poliey was actually canceled.” In the ease at bar, the right of the insured to cancel the poliey is unquestioned.
The cancellation clause of the policy provides that, if cancellation be at the request of the assured, the premium shall be computed on the basis of standard short rate scale. Appellee contends that his letter of September 1 discloses that it was his intention to cancel the policy on a pro rata basis, but that the company did not consent thereto, but insisted on payment of the 3 per cent, guaranteed premium, which would continue the poliey in force until November 5. “It thus appears,” contends appellee, “that before the ten day period had elapsed following August 29th, plaintiff and defendant were negotiating for a satisfactory basis of terminating the poliey and that they had not reached a basis satisfactory to both sides at the time the boat was destroyed by fire on September 14.” Accordingly, argues appellee, the rule to be applied is this: “Where cancellation is attempted in a method different from that specifically authorized by the poliey of insurance or by statute, such cancellation will not be effective unless the minds of both parties to the agreement have met. It was on this basis that the trial judge decided in favor of the plaintiff.” In other words, it is the contention of the insured that his request for cancellation of the poliey was conditioned upon acceptance by the company of a pro rata cancellation. Eor all that appears ip -the record, appellee’s poliey may have been canceled on a pro rata basis. Graessner Company’s letter of September 9 to Duryee & Co. discloses that it is customary to cancel on a pro rata basis in cases where it is impossible to collect the premium. However, the rate or basis of cancellation is entirely immaterial to the question before us, namely, whether the contract was in fact canceled by the insured. By his letters, the insured clearly and unequivocally requested cancellation of the poliey. His-request for cancellation was in no wise conditional. See Ellis v. Hartford Fire Ins. Co. (Tex. Civ. App.) 21 S.W.(2d) 88, 91; Crown Point Iron Co. v. Ætna Ins. Co., supra, 127 N. Y. 608, 28 N. E. 653, 14 L. R. A. 147. The court erred therefore in refusing to find for appellant.
Reversed.
Question: Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
sc_casesource
|
021
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
HAGANS et al. v. LA VINE, COMMISSIONER, NEW YORK DEPARTMENT OF SOCIAL SERVICES, et al.
No. 72-6476.
Argued December 11, 1973
Decided March 25, 1974
White, J., delivered the opinion of the Court, in which Douglas, BrenNAN, Stewart, Marshall, and BlacicmuN, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 550. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 552.
Carl Jay Nathanson argued the cause for petitioners, With him on the briefs were Steven J. Cole and Henry A. Freedman.
Michael Colodner, Assistant Attorney General of New York, argued the cause for respondent Lavine. With him on the brief were Louis J. Lejkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.
Me. Justice White
delivered the opinion of the Court.
Petitioners, recipients of public assistance under the cooperative federal-state Aid to Families With Dependent Children (AFDC) program, brought this action in the District Court for themselves and their infant children and as representatives of other similarly situated AFDC recipients. Their suit challenged a provision of the New York Code of Rules and Regulations permitting the State to recoup prior unscheduled payments for rent from subsequent grants under the AFDC program. They alleged that the recoupment regulation violated the Equal Protection Clause of the Fourteenth Amendment and contravened the pertinent provisions of the Social Security Act governing AFDC and the regulations promulgated thereunder by the administering federal agency, the Department of Health, Education, and Welfare (HEW). The action sought injunctive and declaratory relief pursuant to 42 U. S. C. § 1983 and 28 U. S. C. § 2201, and jurisdiction was invoked under 28 U. S. C. §§ 1343 (3) and (4). The District Court found that the equal protection claim was substantial and provided a basis for pendent jurisdiction to adjudicate the so-called “statutory” claim — the alleged conflict between state and federal law. After hearing, the trial court declared the recoupment regulation contrary to the Social Security Act and HEW regulations and enjoined its implementation or enforcement. Following a remand, the Court of Appeals reversed, holding that because petitioners had failed to present a substantial constitutional claim, the District Court lacked jurisdiction to entertain either the equal protection or the statutory claim. 471 F. 2d 347 (CA2 1973). The jurisdictional question being an important one, we granted certiorari. 412 U. S. 938 (1973). For reasons set forth below, we hold that the District Court had jurisdiction under 28 U. S. C. § 1343 (3) to consider petitioners’ attack on the recoupment regulation.
I
Petitioners brought this action under 42 U. S. C. § 1983, which 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.”
By its terms, § 1983 embraces petitioners’ claims that the challenged regulation enforced by respondent state and county welfare officials deprives them of a right “secured by the Constitution and laws,” viz., the equal protection of the laws. But the federal cause of action created by the section does not by itself confer jurisdiction upon the federal district courts to adjudicate these claims. Accordingly, petitioners relied principally upon 28 U. S. C. § 1343 (3):
“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...
Concededly, § 1343 authorizes a civil action to “redress the deprivation, under color of any State... regulation... of any right... secured by the Constitution of the United States." Section 1343 (3) therefore conferred jurisdiction upon the District Court to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction. If it was, it is also clear that the District Court could hear as a matter of pendent jurisdiction the claim of conflict between federal and state law, without determining that the latter claim in its own right was encompassed within § 1343. Rosado v. Wyman, 397 U. S. 397, 402-405 (1970); see also N. Y. Dept. of Social Services v. Dublino, 413 U. S. 405, 412 n. 11 (1973).
The Court of Appeals ruled that petitioners had not tendered a substantial constitutional claim and ordered dismissal of the entire action for want of subject matter jurisdiction. The principle applied by the Court of Appeals — that a “substantial” question was necessary to support jurisdiction — was unexceptionable under prior cases. Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are “so attenuated and unsubstantial as to be absolutely devoid of merit,” Newburyport Water Co. v. Newburyport, 193 U. S. 561, 579 (1904); “wholly insubstantial,” Bailey v. Patterson, 369 U. S. 31, 33 (1962); “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288 (1910); “plainly unsubstantial,” Levering & Garrigues Co. v. Morrin, 289 U. S. 103, 105 (1933); or “no longer open to discussion,” McGilvra v. Ross, 215 U. S. 70, 80 (1909). One of the principal decisions on the subject, Ex ;parte Poresky, 290 U. S. 30, 31-32 (1933), held, first, that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented”; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that “[t]he question may be plainly unsubstantial, either because it is 'obviously without merit’ or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ Levering & Garrigues Co. v.” Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288; McGilvra v. Ross, 215 U. S. 70, 80.”
Only recently this Court again reviewed this general question where it arose in the context of convening a three-judge court under 28 U. S. C. § 2281:
“ 'Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U. S., at 33; ‘wholly insubstantial,’ ibid,.; ‘obviously frivolous,’ Hannis Distilling Co. y. Baltimore, 216 U. S. 285, 288 (1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U. S. 30, 32 (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U. S. C. § 2281. A claim is insubstantial only if'“its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garri-gues Co. v. Morrin, 289 U. S. 103, 105-106 (1933); McGilvra v. Ross, 215 U. S. 70, 80 (1909).” Goosby v. Osser, 409 U. S. 512, 518 (1973).
The substantiality doctrine as a statement of jurisdictional principles affecting the power of a federal court to adjudicate constitutional claims has been questioned, Bell v. Hood, 327 U. S. 678, 683 (1946), and characterized as “more ancient than analytically sound,” Rosado v. Wyman, supra, at 404. But it remains the federal rule and needs no re-examination here, for we are convinced that within accepted doctrine petitioners' complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy.
Jurisdiction is essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U. S. 22, 25 (1913). Here, §§ 1343 (3) and 1983 unquestionably authorized federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation. The District Court’s jurisdiction, a matter for threshold determination, turned on whether the question was too insubstantial for consideration.
In Dandridge v. Williams, 397 U. S. 471 (1970), AFDC recipients challenged the Maryland maximum grant regulation on equal protection grounds. We held that the issue should be resolved by inquiring whether the classification had a rational basis. Finding that it did, we sustained the regulation. But Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law. State laws and regulations must still “be rationally based and free from invidious discrimination.” Id., at 487. See Jefferson v. Hackney, 406 U. S. 535, 546 (1972); Carter v. Stanton, 405 U. S. 669, 671 (1972); cf. San Antonio School District v. Rodriguez, 411 U. S. 1 (1973).
Judged by this standard, we cannot say that the equal protection issue tendered by the complaint was either frivolous or so insubstantial as to be beyond the jurisdiction of the District Court. We are unaware of any cases in this Court specifically dealing with this or any similar regulation and settling the matter one way or the other. Nor is it immediately obvious to us from the face of the complaint that recouping emergency rent payments from future welfare disbursements, which petitioners argue deprived needy children because of parental default, was so patently rational as to require no meaningful consideration.
The Court of Appeals rightly felt obliged to measure petitioners’ complaint that the challenged regulation violated the Equal Protection Clause “by discriminating irrationally and invidiously between different classes of recipients” against the standard prescribed by Dan-dridge. The Court of Appeals then reasoned that without the recoupment regulation, those who were subject to it would be preferred over those who had paid their full rent out of their normal monthly grant. The court further reasoned that the regulation provided an incentive for welfare recipients to properly manage their grants and not become delinquent in their rent. It concluded that the regulation was rationally based and that no substantial constitutional question within the jurisdiction of the District Court had been presented.
This reasoning with respect to the rationality of the regulation and its propriety under the Equal Protection Clause may ultimately prove correct, but it is not immediately obvious from the decided cases or so “very plain” under the Equal Protection Clause. We think the admonition of Bell v. Hood, 327 U. S. 678 (1946), should be followed here:
“Jurisdiction... is not defeated as respondents seem to contend, by the possibility that the aver-ments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” Id., at 682 (citations omitted).
As was the case in Bell v. Hood, we cannot “say that the cause of action alleged is so patently without merit as to justify, even under the qualifications noted, the court’s dismissal for want of jurisdiction.” Id., at 683. Nor can we say that petitioners’ claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits.” Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 666-667 (1974). (Citations omitted.)
II
Given a constitutional question over which the District Court had jurisdiction, it also had jurisdiction over the “statutory” claim. See supra, at 536. The latter was to be decided first and the former not reached if the statutory claim was dispositive. California Human Resources Dept. v. Java, 402 U. S. 121, 124 (1971); Dandridge v. Williams, 397 U. S., at 475-476; Rosado v. Wyman, 397 U. S., at 402; King v. Smith, 392 U. S. 309 (1968). The constitutional claim could be adjudicated only by a three-judge court, but the statutory claim was within the jurisdiction of a single district judge. Swift & Co.v. Wickham, 382 U. S. Ill (1965); Rosado v. Wyman, supra, at 403. Thus, the District Judge, sitting alone, moved directly to the statutory claim. His decision was appealed to the Court of Appeals, although had a three-judge court been convened, an injunction issued, and the statutory ground alone decided, the appeal would be only to this Court under 28 U. S. C. § 1253.
The procedure followed by the District Court — initial determination of substantiality and then adjudication of the “statutory” claim without convening a three-judge court — may appear at odds with some of our prior decisions. See, e. g., Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 (1966); Florida Lime & Avocado Grow ers v. Jacobsen, 362 U. S. 73 (1960). But, we think it accurately reflects the recent evolution of three-judge-court jurisprudence, “this Court's concern for efficient operation of the lower federal courts,” and “the constrictive view of the three-judge [court] jurisdiction which this Court has traditionally taken.” Swift & Co. v. Wickham, supra, at 128, 129 (citations omitted). In Rosado v. Wyman, supra, at 403, we suggested that
“[e]ven had the constitutional claim not been declared moot, the most appropriate course may well have been to remand to the single district judge for findings and the determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court. See Swift & Co. v. Wickham, 382 U. S. Ill (1965).”
It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue. Nevertheless, the coincidence of a constitutional and statutory claim should not automatically require a single-judge district court to defer to a three-judge panel, which, in view of what we have said in Rosado v. Wyman, supra, could then merely pass the statutory claim back to the single judge. See Kelly v. Illinois Bell Telephone Co., 325 F. 2d 148, 151 (CA7 1963); Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F. 2d 317, 319-320 (CA6 1958); Doe v. Lavine, 347 F. Supp. 357, 359-360 (SDNY 1972); cf. Bryant v. Carleson, 444 F. 2d 353, 358-359 (CA9 1971). “In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge’s decision resolves the case, for there is then no need to convene the three-judge court.” Norton v. Richardson, 352 F. Supp. 596, 599 (Md. 1972) (citations omitted). Section 2281 does not forbid this practice, and we are not inclined to read that statute “in isolation with mutilating literalness....” Florida Lime & Avocado Growers v. Jacobsen, supra, at 94 (Frankfurter, J., dissenting).
Ill
Taking a jaundiced view of the constitutional claim, the dissenters would have the District Court dismiss the Supremacy Clause (“statutory”) issue, convene a three-judge court, and reject the constitutional claim, all of this, apparently, as an exercise of the discretion which the District Court, under Mine Workers v. Gibbs, 383 U. S. 715 (1966), is claimed to have over the pendent federal claim. But Gibbs was oriented to state law claims pendent to federal claims conferring jurisdiction on the District Court. Pendent jurisdiction over state claims was described as a doctrine of discretion not to be routinely exercised without considering the advantages of judicial economy, convenience, and fairness to litigants. For, “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” Id., at 726 (footnote omitted).
In light of the dissent’s treatment of Gibbs, several observations are appropriate. First, it is evident from Gibbs that pendent state law claims are not always, or even almost always, to be dismissed and not adjudicated. On the contrary, given advantages of economy and convenience and no unfairness to litigants, Gibbs contemplates adjudication of these claims.
Second, it would reasonably follow that other considerations may warrant adjudication rather than dismissal of pendent state claims. In Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909) the Court held that the state issues should be decided first and because these claims were dispositive, federal questions need not be reached:
“Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.” Id., at 193.
Siler is not an oddity. The Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims. See, e. g., Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298, 303-304, 310 (1913); Ohio Tax Cases, 232 U. S. 576, 586-587 (1914); Greene v. Louisville & Interurban R. Co., 244 U. S. 499, 508-509 (1917); Louisville & Nashville R. Co. v. Greene, 244 U. S. 522, 527 (1917); Davis v. Wallace, 257 U. S. 478, 482, 485 (1922); Chicago G. W. R. Co. v. Kendall, 266 U. S. 94, 97-98 (1924); Cincinnati v. Vester, 281 U. S. 439, 448-449 (1930); Hillsborough v. Cromwell, 326 U. S. 620, 629 (1946). The doctrine is not ironclad, see Sterling v. Constantin, 287 U. S. 378, 393-394, 396 (1932), but it is recurringly applied, and, at the very least, it presumes the advisability of deciding first the pendent, nonconstitutional issue.
Gibbs did not cite Siler or like cases, nor did it purport to change the ordinary rule that a federal court should not decide federal constitutional questions where a dis-positive nonconstitutional ground is available. The dissent uncritically relies on Siler but ignores the preference stated in that case for deciding nonconstitutional claims even though they are pendent and, standing alone, are beyond the jurisdiction of the federal court.
Third, the rationale of Gibbs centers upon considerations of comity and the desirability of having a reliable and final determination of the state claim by state courts having more familiarity with the controlling principles and the authority to render a final judgment. These considerations favoring state adjudication are wholly irrelevant where the pendent claim is federal but is itself beyond the jurisdiction of the District Court for failure to satisfy the amount in controversy. In such cases, the federal court’s rendition of federal law will be at least as sure-footed and lasting as any judgment from the state courts.
The most relevant cases for our purposes, of course, are those decisions such as King v. Smith, 392 U. S. 309 (1968), Rosado v. Wyman, 397 U. S. 397 (1970), and Dandridge v. Williams, 397 U. S. 471 (1970), where the jurisdictional claim arises under the Federal Constitution and the pendent claim, although denominated “statutory,” is in reality a constitutional claim arising under the Supremacy Clause. In these cases the Court has characteristically dealt with the “statutory” claim first “because if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TV A, 297 U. S. 288, 346-347 (Brandéis, J., concurring); Rosenberg v. Fleuti, 374 U. S. 449.” Dandridge v. Williams, supra, at 475-476.
In none of these cases did the Court think that with jurisdiction fairly established, a federal court, under Gibbs, must nevertheless decide the constitutional issue and avoid the statutory claim if, upon weighing the two claims, the statutory claim is strong and the constitutional claim weak. On the contrary, Mr. Justice Harlan, writing for the Court in Rosado v. Wyman, and with the principles of Gibbs well in mind, noted that the pendent statutory question was essentially one of federal policy and that the argument for the exercise of pendent jurisdiction was “ ‘particularly strong.’ ” 397 U. S., at 404. And Gibbs itself observed the “special reason for the exercise of pendent jurisdiction” where the Supremacy Clause is implicated: “the federal courts are particularly appropriate bodies for the application of pre-emption principles.” 383 U. S., at 729.
The judgment of the Court of Appeals is reversed and the case remanded to that court for further proceedings consistent with this opinion.
So ordered.
AFDC is one of several major categorical public assistance programs established by the Social Security Act of 1935, and as we described in King v. Smith, 392 U. S. 309, 316-317 (1968), it is founded on a scheme of cooperative federalism:
“It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 49 Stat. 627, 42 U. S. C. §§ 601, 602, 603, and 604. See [U. S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 21-23 (1964)]. The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U. S. C. § 602 (1964 ed., Supp. II). See also HEW, Handbook of Public Assistance Administration, pt. IV, §§2200, 2300...
See also Rosado
Question: What is the court whose decision the Supreme Court reviewed?
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211. Court of Private Land Claims
Answer:
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songer_respond1_1_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 "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".
The TILLOTSON MANUFACTURING COMPANY, Plaintiff-Appellant, v. TEXTRON, INC., HOMELITE, a Division of Textron, Inc., Defendant-Appellee. The TILLOTSON MANUFACTURING COMPANY, Plaintiff-Appellee, v. TEXTRON, INC., HOMELITE, a Division of Textron, Inc., Defendant-Appellant.
Nos. 15439, 15440.
United States Court of Appeals Sixth Circuit.
Nov. 6, 1964.
Clarence B. Zewadski, Detroit, Mich., Harry O. Ernsberger, Toledo, Ohio, Whittemore, Hulbert & Belknap, Detroit, Mich., Henry W. Seney, Wilson W. Snyder, Fuller, Seney, Henry & Hodge, Toledo, Ohio, on brief, for Tillotson Mfg. Co.
W. Brown Morton, Jr., New York City, Carl F. Schaffer, Owen & Owen, Toledo, Ohio, on brief; Robert McKay, Charles J. Brown, Pennie, Edmonds, Morton, Taylor & Adams, New York City, of counsel, for Textron.
Before WEICK, Chief Judge, and O’SULLIVAN and PHILLIPS, Circuit Judges.
WEICK, Chief Judge.
These appeals arise out of patent infringement actions between the same parties, involving two patents for improvements of diaphragm type carburetors of different design and construction. They were argued together.
The District Court referred both actions to a Special Master who heard the evidence, considered them separately, wrote opinions and made findings of fact and conclusions of law in each case. These findings of fact and conclusions of law were approved and confirmed by the District Court.
In Appeal No. 15,439, the District Court held that Claims 1 and 2 of Phillips Patent No. 2,733,902 were invalid and not infringed by the accused carburetors of defendant. Plaintiff appealed only from the judgment declaring the patent invalid.
In Appeal No. 15,440, the District Court held that Claims 4 to 7, 9 to 12: and 14 to 17 of Phillips Patent No. 2,-841,372 were valid and infringed. Defendant appealed.
Phillips, the inventor of both patented carburetors, assigned the patents to the plaintiff.
APPEAL No. 15,439
PHILLIPS PATENT 2,733,902
Diaphragm carburetors were developed to permit the operation of small two-cycle combustion engines at extreme angles from vertical or inverted positions without leakage of the fuel. This could not be accomplished with the float type carburetor. The development extended over a period of many years. Phillips was not the first to design such a carburetor although he unquestionably contributed significant engineering advances in the field. The carburetors were used primarily for the operation of chain saws although they could be used to power lawn mowers and boats.
Carburetors of the general type disclosed in Claims 1 and 2 of the patent were not new. These claims define an improvement, namely, the combination of valve means (shown in the specification as a mechanical check'valve) in the main fuel orifice of the carburetor to prevent or interrupt, when the engine is idling, the back flow of air from the mixing passage of the carburetor through the main fuel orifice into the idling chamber. This flow of air is called back-bleeding.
The problem of back-bleeding or reverse flowing of air does not arise when the engine is operating at high speed with the throttle valve open. It occurs when the throttle valve is closed and the engine is idling and supplied with fuel through an idling orifice which is separated from and located some distance away from the main fuel orifice. The air pressure at the main fuel orifice is greater than at the idling orifice and the air flows back from the mixing passage through the main fuel orifice into passage ways leading to the idling orifice. This mixes too much air with the idling fuel making the mixture so lean that the engine will stall. To stop or interrupt this reverse flow of air Phillips provides valve means. The patent drawing (Fig. 4) discloses a ball check valve located in the main fuel orifice.
When the engine is operating with the throttle open, fuel is sucked from the fuel chamber through the main fuel nozzle. This suction lifts the ball valve off its seat and permits the free flow of fuel through the main fuel nozzle into the mixing passage. When the throttle is closed and the engine is idling, there is a suction in the reverse direction through the main fuel nozzle into the fuel chamber. The ball cheek valve is sucked onto its seat thus preventing the back flow of air into the fuel chamber.
Phillips’ application for patent had “rough going” in the Patent Office. In the first action, the Examiner cited the following references against it:
Wirth et al 2,345,168 (1944)
Wirth 2,445,097 (1948)
Brunner 2,568,987 (1951)
Sloane 2,569,782 (1951)
Carlson et al 2,339,320 (1944)
The Examiner rejected all the claims of the patent as unpatentable over Wirth et al “which shows the diaphragm actuated fuel inlet valve for the chamber 11, the air chamber 75, and the main and idling fuel systems.” The Examiner was of the view that the arrangement of Wirth for controlling the inlet valve is the full equivalent of Phillips’ arrangement and it “teaches the use of a check valve in the idling system to prevent back flow there-through.” He noted that Brunner and Sloane also teach the same.
Phillips filed an amendment. The Examiner again rejected all of his claims as unpatentable combinations citing as additional references:
Rubatto (Italy) 311,708 (1933)
Gistucci et al 2,156,115 (1939)
Clesse (France) 985,460 (1951)
The Examiner thought that Gistucci showed a fuel regulator structure similar to Phillips’ while Rubatto showed the main and idling fuel system together with a throttle check valve for closing the main discharge nozzle while the idling parts are discharging. Gistucci et al provided a spring that opened the fuel inlet valve that is biased to closed position by another spring. The Examiner stated it would not be invention to add the fuel systems of Rubatto to the regulator of Gistucci et al. He was of the opinion that the lever and the diaphragm arrangement of Gistucci et al was the full equivalent of Phillips. In view of the teachings of Wirth et al, the combination of Rubatto and Gistucci et al was considered obvious to one skilled in the art.
Clesse taught the use of a spring acting on a lever and diaphragm for controlling a fuel inlet valve biased to open position in a carburetor.
Phillips filed a second amendment and the Examiner for the third time rejected all of the claims.
A third amendment was filed which finally resulted in an allowance of six claims.
The Special Master considered references which were not cited by the Examiner, namely, Braeke 2,680,605 and the McCulloch 3-25 chain saw.
BRACKE PRIOR ART PATENT 2,680,605
The application for the Braeke patent was filed on October 20, 1950 and it is undisputed that the patent is a valid reference. The Braeke application for patent was pending in the Patent Office at the same time of Phillips’ application which resulted in ’902. No interference proceeding was instituted. The Patent Examiner apparently did not know of the Braeke patent as he most certainly would have cited it as a reference.
Braeke is similar in many respects to Phillips ’902 as defined in Claims 1 and 2. Braeke asserts that his carburetor operates in all positions and that one of its objects was to provide new and improved means for preventing back-bleeding. The Special Master found that Braeke has the same general arrangement of parts as specified in these claims and employs a mechanical check valve to prevent back-bleeding which is a full equivalent of the check valve used by Phillips in his main fuel orifice. He compared the disclosure in Braeke with Claim 1 of Phillips and with one exception found that they both provided for substantially the same elements. The exception was that in Phillips the fuel inlet valve operates to close the supply duct against pressure of the fuel while in Braeke the fuel valve operates in the direction of fuel to close the duct. He stated that both types of valves were old, well known in the prior art and are considered as equivalents. Mr. Phillips, in his testimony, admitted that the use of a needle valve with the point of the needle opposed to the delivery of fuel is conventional. Valves moving against pressure to close an inlet were shown in Armstrong Patent 2,724,584, Conover 2,-713,854, Ensign 2,653,228 and Phillips earlier Patent 2,387,676. Claim 2 of ’902 provided for a lever pivotally supported in the chamber and in constant engagement with the diaphragm. The use of levers of different types to transmit force is old. A pivoted lever was shown in Armstrong, Ensign above-mentioned and Ensign Reissue 22,151. None of these references were cited by the Patent Office.
Braeke used a spring biased stem connected with the valve which provided the force of a lever although it was not pivoted. Nor do we think that patentable invention was shown by Phillips locating his inlet valve duct at the side of the structure instead of in the center of the diaphragm as provided by Braeke.
The Special Master was of the view that Braeke anticipated Phillips. In our judgment, Phillips was obvious in view of Bracke to a person skilled in the art. There is no invention.
Tillotson claims that the Special Master and District Court erred in holding that the check valve to prevent back-bleeding was the crux of Phillips’ invention. We find no error in this conclusion. In our judgment, the device to prevent back-bleeding was the principal part of the invention without which it would never have been successful.
Tillotson claims that Bracke was a paper patent and that carburetors embodying its features were never manufactured and sold. This contention is irrelevant on the question whether its disclosures constituted anticipation. Coats Loaders & Stackers, Inc. v. Henderson, 233 F.2d 915 (CA6, 1956). Such a patent does not indicate lack of invention. Edward Valves, Inc. v. Cameron Iron Works, Inc., 286 F.2d 933 (CA5, 1961). Failure to use a patent does not affect its validity. Special Equipment Co. v. Coe, 324 U.S. 370, 65 S.Ct. 741, 89 L.Ed. 1006 (1945).
McCulloch prior art CHAIN SAW
70,777 of McCulloch chain saws, equipped with his carburetors, were sold prior to May 1, 1952. It was conceded that the McCulloch carburetor was prior art.
The Special Master compared Phillips’ construction with McCulloch and found that many similarities existed in the elements of the two carburetors. Tillotson contended that the McCulloch check valve was introduced to prevent dribbling of fuel, whereas Phillips was to prevent back-bleeding of air.
Demonstrations were conducted in Court which revealed that the McCulloch check valve did in fact interrupt the flow of air through the main fuel orifice from the mixing passage into the idling passage when the idling orifice was delivering fuel into the mixing passage.
It was not material what purpose motivated McCulloch in using the check valve so long as it operated as it did to prevent back-bleeding.
McCulloch had a hook instead of a lever which engaged the fuel control valve. Bracke used a stem. We have shown, in considering Bracke, that the use of a lever was well known in the art.
McCulloch had no spring engaging the hook in a direction to close the fuel valve as provided in Phillips. It certainly does not constitute invention to install a spring which was also known in the art and is shown in Ensign, Armstrong and Bracke patents.
The Special Master found that in the McCulloch carburetor the elements were so arranged that the ball was held in its seat by forces exerted by the resilience of the diaphragm calibrated with relation to the length of the hook and the hydrostatic pressure of the fuel on the diaphragm. The spring used by Phillips was not necessary in McCulloch.
With the prior art cited by the Patent Examiner against the Phillips application for patent, it barely passed muster in the Patent Office.
If the Examiner had known of Bracke and McCulloch, it is doubtful that the Patent would have been issued.
The presumption of validity which attends the issuance of a patent is weakened where relevant prior art was not considered by the Patent Office. Kennatrack Corp. v. Stanley Works, 314 F.2d 164 (CA7, 1963); Aluminum Company of America v. Sperry Products, Inc., 285 F.2d 911 (CA6, 1960); Gibson-Stewart Co. v. Wm. Bros. Boiler & Mfg. Co., 264 F.2d 776 (CA6, 1959).
We see no invention in Phillips ’902 over the disclosures in McCulloch.
We find no basis for overturning the findings of fact adopted by the Special Master, which were approved and confirmed by the District Court.
INFRINGEMENT
The accused carburetors did not use a mechanical valve in the main fuel orifice to interrupt the flow of air, but provide a capillary seal that was covered by Phillips Patent ’372 that we hold is valid and infringed in Appeal No. 15,440.
Textron claims that its capillary fuel carburetors did not infringe Phillips ’902 patent. Tillotson, the owner of Phillips ’902 patent contends that there was infringement.
Claim 2 of Phillips ’902 patent provided in part:
“ * * * Valve means arranged to interrupt air flow through the main orifice from the mixing passage into said channel, when said secondary orifices are delivering fuel into the mixing passage.”
The specification and drawings of ’902 provided mechanical means, namely, a ball check valve in the main fuel orifice. They did not disclose a capillary fuel plug or valve.
Claim 2 must be read in the light of the specification and drawings. It may not be given a construction broader than the teachings of the patent. Cincinnati Milling Machine Co. v. Turchan, 208 F.2d 222 (CA6, 1953); Blanc v. Curtis, 119 F.2d 395 (CA6, 1941). In view of the crowded art, the patent must be limited to the precise structure disclosed and claimed. Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3 (1946); Kennatrack Corp. v. Stanley Works, supra. Adopting this construction, valve means in Claim 2 included only mechanical valves.
The capillary seal concept is not an equivalent of the valve means provided for in Phillips ’902 patent, but is a new element. The accused carburetors did not infringe ’902 patent.
MISMARKING OF CARBURETORS
Tillotson marked all of the carburetors which it manufactured and sold “Patent No. 2,733,902,” whether the valve means was mechanical or capillary.
The District Court held that there was a mismarking insofar as the capillary valve carburetors were concerned, but that it was unintentional. An injunction was issued restraining Tillotson from so marking its capillary valve carburetors in the future. We think this was proper.
APPEAL No. 15,440
PHILLIPS PATENT No. 2,841,372
This patent is related to a diaphragm carburetor adaptable for internal combustion engines of the two-cycle type used to furnish power for chain saws, lawnmowers, small boats and other similar contrivances where the engine is sometimes tilted to extreme angles. It will operate in all positions and at all speeds.
The basic concept of this carburetor was disclosed in ’902 where a ball check valve or other mechanical means was provided to eliminate back-bleeding of air from the mixing passage into the fuel chamber when the engine idled or was running slowly. This so-called back-bleeding causes the engine to run lean or to stall.
’372 introduced for the first time a significant improvement over ’902 by rearranging and reconstructing the parts of the carburetor so that capillary action and surface tension of the fuel in the passages were utilized to establish an effective liquid seal which operated as a check valve and prevented the back-bleeding of air from the mixing passage into the fuel chamber. This eliminated the necessity of a ball check valve.
Appellant’s statement as to the phenomena involved appears in part in footnote .
The capillary seal concept had many advantages over the ball type check valve. There was no wear or need for replacement. There was no difficulty caused by dirt getting under the ball and holding it from its seat. The need for a conventional nozzle or outlet extending into the venturi, which was required with a ball type valve, was eliminated.
This was a new carburetor. There was nothing like it in the prior art. The invention was accompanied by commercial success. A total of 1,899,352 of the capillary seal type carburetors had been sold up to the time the present patent litigation was commenced.
The claim of appellant was not that ’372 carburetor lacked invention, novelty or utility. Rather, it contended that “the essence of the invention is recited in a vague and confusing passage setting forth a distance in terms of a force in a manner which is unintelligible without resort to explanations not embodied in the specification and beyond the knowledge of those skilled in the art at the time the application was filed,” that the claims call for a certain desirable result without recitation of sufficient structure to produce the result; that the diaphragm cannot be located except by independent experiments and that the distance factor stated in the claims was irrelevant.
The alleged vague and confusing passage of which appellant complains appears in italics in Claim 6 of the patent which is a representative claim and is set forth at length in footnote
Appellant relies on 35 U.S.C. § 112 (1952)
There is nothing vague or confusing about this claim to a person skilled in the carburetor art. It must be interpreted in the light of the specification and drawings. The test is whether the disclosures make the invention clear to a mechanic skilled in the art so that he could construct the carburetor and use it. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 61 S.Ct. 235, 85 L.Ed. 132 (1940).
Whether the patent properly describes the invention so as to enable any person skilled in the art to make and use it must be determined by consideration of the specification, drawings, claims and the other evidence in the case.
The Special Master appointed by the Court heard the evidence. It consisted of oral testimony, written documents and demonstrations of physical models. Phillips, the inventor, who was a mechanical engineer, testified in behalf of plaintiff. Kenneth Charles Schneider, who was also an engineer, testified for the defendant. Mr. Schneider was Vice President of Brown Engine Products, Inc. This company made the accused carburetors and sold them to the defendant.
The Special Master, in his decision, had this to say with respect to defendant’s evidence:
“Defendant has not offered any significant evidence that a person skilled in the carburetor art could not, from the data given in the patent, construct a carburetor having the seal strength greater than the suction required to aspirate fuel out of the idling orifice, nor that he could not construct a carburetor from this data having a seal (32) strength sufficient to support a column of water of approximately 1" in height.
“Defendant failed to adduce evidence or testimony that with the information given in the patent it would be impossible to make a carburetor wherein the capillary effect of the fuel would not maintain the fuel in the passage against a pressure differential equivalent to that pressure required to support a column of water about 1" in height.”
In his findings of fact Nos. 39 to 54, the Special Master considered in great detail the specification, drawings and the evidence. He found that the design, dimensions and proportions of the fuel passages and the location of the diaphragm with reference to the fuel delivery orifice are proportioned so that a capillary plug of liquid is rendered available as a seal to prevent back-bleeding; that the patent illustrates in the drawings and the specification describes a construction whereby the seal is obtained; that the patent teaches the proportioning of the constructional elements and the positioning of the fuel discharge system and that the patent adequately teaches one skilled in the carburetor art how to make a carburetor embodying the features of the invention.
These findings of fact of the Special Master, adopted by the District Judge, are entitled to great weight and may not be disturbed unless clearly wrong. Patrol Valve Co. v. Robertshaw-Fulton Controls Co., 210 F.2d 146 (CA6, 1954); Research Products Co., et al. v. Tretolite Co., 106 F.2d 530 (CA9, 1939).
The patent was presumed valid. The burden of proof to establish invalidity was on the party asserting it. 35 U.S.C. § 282 (1952)
The findings of fact of the Special Master, confirmed by the District Judge, are not clearly wrong. We find no basis for holding that the invention was inadequately or improperly described. Aluminum Co. of America v. Sperry Products, Inc., 285 F.2d 911, 915 (CA6, 1960).
We think the claims define a structural limitation and not merely a result. The structural limitation was ascertainable by manometer measurements, which are familiar to a person skilled in the art.
Nor do we believe that the location of the diaphragm in the carburetor requires experimentation of the type condemned by the patent law. A specific example of the carburetor was given in the specification. The fact that some testing may be required in calibrating carburetors for different engines does not render the claims indefinite where adequate guideposts were furnished as here. Minerals Separation Limited v. Hyde, 242 U.S. 261, 37 S.Ct. 82, 61 L.Ed. 286 (1916); Toledo Rex Spray Co. v. California Spray Chemical Co., 268 F. 201 (CA6, 1920). It was not claimed by the appellee that the capillary seal carburetor will work on all engines. It has worked on engines of the type described in the patent.
It is further contended that the distance factor is irrelevant in achieving the object of the invention. The patent specifications provide otherwise. Plaintiff’s expert, Phillips, in his testimony established relevancy. Mr. Phillips testified that the capillary seal may form at any one of three different places in the carburetor, the uppermost being the main fuel orifice. This was the starting point of the measurement. The other places were in the metering passage. The Special Master determined this factual issue adversely to appellant. We see no reason to disturb the finding.
Claims 4 to 7 of the patent are valid. Claims 9 to 12 and 14 to 17 were dependent upon the validity of Claims 4 to 7 and are, therefore, valid.
The findings of the Special Master with respect to infringement are not seriously questioned by appellant. The accused carburetors were of the capillary seal type embodied in Phillips’ patent '372. In its brief filed in Appeal No. 15,439, Textron stated that it “takes issue with that judgment (in Appeal No. 15,440) only on the ground that the capillary seal claims of the ’372 patent are invalid under 35 U.S.C. § 112.” id. p. 29.
The judgment of the District Court is affirmed in each appeal.
. Claim 1 is as follows:
“1. In combination with a charge forming device having a body formed with a mixing passage and a fuel receiving chamber having a single flexible diaphragm defining one wall thereof and a main orifice arranged to deliver liquid fuel from the chamber into the mixing passage and a secondary orifice formed in the wall of the mixing passage, a fuel inlet duct in the body, a fuel inlet control valve having a needle portion extending into the duct and operative to close said duet against fuel pressure in the duct, a fuel well formed in the body, a passage connecting the fuel receiving chamber with the fuel well, means for metering the flow of liquid fuel from said chamber through said passage into the fuel well, a member movably supported in said chamber in constant engagement with the diaphragm, said member having a portion engaging the fuel inlet control valve, a spring engaging said member and normally biasing the member in a direction to close said fuel inlet control valve, said diaphragm being actuated solely by sub-atmospheric pressure in the mixing passage to move the member in a direction to change the position of the fuel inlet control valve to admit fuel through the duct into the fuel receiving chamber, a channel for supplying fuel from the fuel receiving chamber to the secondary orifice, and valve means arranged to interrupt air flow through the main orifice from the mixing passage into said channel when said secondary orifice is delivering fuel into the mixing passage.”
Textron, Inc. is referred to as appellant or Textron. The Tillotson Manufacturing Co. is referred to as appellee.
. “Diaphragm carburetors are devices that mix liquid fuel with air for combustion in the cylinder of an engine. In such carburetors, the liquid fuel is forced into a ‘chamber’ and is sucked from that chamber on demand by aspiration into a ‘mixing passage’ where the necessary mixture of fuel and air is created. There are two routes from the chamber to the mixing passage which the liquid fuel may take. One is the idle fuel passage which alone delivers fuel when the throttle is closed and the engine is idling. The other route is the so-called main fuel ‘metering passage’ which delivers a relatively larger amount of fuel into the mixing passage when the throttle is open and the engine is running at high speed, and as the main fuel metering passage thus delivers fuel so too does the idling fuel passage. A so-called main fuel adjustment needle valve is located in this main fuel metering passage to control the rate of flow therethrough.
“A sufficient quantity of fuel must be maintained in the chamber to meet the demands of either or both of the idling and main fuel metering passages and this is the function of the ‘diaphragm’ which is a circular rubber disc defining the bottom wall of the chamber. This diaphragm is flexible and can ‘breathe’ into or out of the chamber in response to small increases or decreases in the pressure of the fuel in the chamber. By means of spring-biased lever-type linkage, such flexure of the diaphragm operates a ‘fuel control valve,’ usually of the needle type, which controls flow of pressurized fuel from a fuel tank or fuel pump associated with the carburetor. When fuel is aspirated out of the idle or main fuel metering passage to meet the demands of the engine, the diaphragm flexes inwardly to open the fuel control valve and admit sufficient fuel to maintain the desired fuel level in the chamber. When the fuel level is thus restored and the pressure on the diaphragm is brought back to its nominal level, the diaphragm flexes out of the chamber to effect closure of the fuel control valve. Thus, the diaphragm, the spring-biased lever, and the fuel control valve regulate fuel flow into the chamber to maintain a sufficient quantity of fuel for aspiration into the mixing passage.
“During idling, which is when the idling passage alone is delivering fuel into the mixing passage, a problem of so-called ‘back-bleeding’ exists at the main fuel metering passage. At the ‘opening in the mixing passage’ where the metering passage communicates with it, the metering passage is exposed to atmospheric pressure through the air-intake of the carburetor, and in the chamber at the other end of the metering passage it is exposed to suction due to aspiration of fuel out of the idle fuel passage. Since nature abhors a vacuum, the air at atmospheric pressure in the mixing passage tends to force its way down the main fuel metering passage and into the chamber under these idling conditions. This is ‘back-bleeding.’ It is undesirable because it leads to the collection of air in the chamber which eventually may be aspirated through the idle fuel passage and into the engine instead of liquid fuel. That causes the engine to ‘run lean’ or even fail.
“If a diaphragm carburetor is so designed (a) that under idling conditions the diaphragm can flex inwardly to open the fuel control valve in response to suction at the idling passage (69a), and (b) at the same time that suction is not so great as to break the capillary seal in the main fuel metering passage and pull air into the chamber (72a), while (c) the main passage remains open enough to deliver fuel from the reservoir under open-throttle conditions (71a), then that carburetor is an operative embodiment of a so-called ‘capillary seal’ device.” Appellant’s brief, pp. 4-6.
. “6. In combination, a charge forming device for an internal combustion engine including a body formed with a mixing passage, a shallow fuel receiving chamber formed in the body, a flexible diaphragm forming a wall of the chamber, a channel formed in said body having an orifice in the form of an opening in the wall of the mixing passage arranged to deliver liquid fuel from the chamber into the mixing passage under the influence of subatmospheric pressure in the mixing passage, said fuel chamber being unvented, a fuel inlet duct formed in the body, a fuel control valve cooperating with the duet effective upon an increase in pressure in the chamber to close the duct, a lever fulcrumed within the chamber and having portions engaging the fuel inlet valve and the diaphragm, spring means normally biasing said inlet valve toward closed position, a restricted fuel metering passage establishing communication between the fuel chamber and the orifice in the mixing passage, said diaphragm being disposed, relative to said opening in said mixing passage within a maximum distance as determined by the capillary effect of the fuel in said metering passage, said maximum distance being that distance at which the capillary effect of said fuel in said metering passage will maintain said fuel in said passage against a pressure differential equivalent to that pressure required to support a column of water about one inch in height." (Italics ours)
. “Specification.
“The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
“The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
“An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_casetyp1_7-2
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F
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Mike DOLL, Ronald Elbon and Kent Langworthy, Plaintiffs-Appellants, v. GRAND UNION COMPANY, Defendant-Appellee.
No. 89-8682.
United States Court of Appeals, Eleventh Circuit.
March 11, 1991.
Walter B. Russell, Jr., Russell & Russell, Decatur, Ga., for plaintiffs-appellants.
Michael Smith, Ralph Allen Pitts, King & Spalding, Atlanta, Ga., for defendant-appel-lee.
Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.
TJOFLAT, Chief Judge:
The appellants, Mike Doll, Ronald Elbon, and Kent Langworthy, are partners in a real estate development business in Atlanta, Georgia. The Grand Union Company, the appellee, owns and operates a chain of supermarkets, the Big Star Food Stores. The appellants brought this suit against the appellee after it refused to sign a lease for a food store in a shopping center they were trying to develop and the project failed. Advancing several theories of liability, the appellants sought to recoup the money they had spent on the project and lost, and the rent the appellee would have paid them had it signed the lease. The district court found no merit in any of their theories, and granted the appellee summary judgment. We affirm.
I.
A.
In 1984, the Grand Union Company (Grand Union) conducted a marketing survey of the greater Atlanta area. Based on this survey, Grand Union concluded that the intersection of Memorial Drive and Hairston Road in Dekalb County offered an ideal location for a new Big Star Food Store. Raymond Ayers, a vice president at Grand Union, asked one of his former employees, Lewis Allen, to contact the developers in the area who might be interested in building a shopping center at that location, with Grand Union as the primary tenant. One of the people Allen contacted was an individual named Frederick Ross. Ross was a friend and former business associate of appellant Mike Doll; at the time, Doll and appellants Ron Elbon and Kent Langworthy, as partners, were operating a real estate development firm, Great South Realty. Ross, Doll, and Doll’s partners liked Allen’s proposal and decided to join forces, acquire the land at the Memorial Drive and Hairston Road intersection, and build the shopping center; they called themselves, and their venture, the Hairston Run Partners (the partners or the partnership).
The land needed for the shopping center consisted of several parcels. The partners promptly contacted the owners of these parcels and, after a period of several months, obtained options to purchase their land. The partners entered into these contracts without a binding commitment from Grand Union to lease space in the proposed shopping center; in fact, all they had from Grand Union was an “indication of interest” in having a food store there.
Although the two sides differ in their characterizations of the strength of Grand Union’s interest in locating at the shopping center, it is clear that at the very least Grand Union indicated a strong desire to lease space in the facility and that the partners regarded Grand Union as their lead or anchor tenant. It is also clear that, until May 1986, the parties’ discussions were merely preliminary in nature, dependent on the resolution of several issues, and that, as Ayers informed Ross, who was negotiating the lease for the partnership, Grand Union’s real estate board would have to approve the deal before Grand Union could proceed. The key issue to be resolved was access to Grand Union’s food store. For the food store to be successful, it was imperative that the store’s customers be able to turn left easily from Memorial Drive into the store and from the store onto Memorial. At the time, the Memorial Drive and Hairston Road intersection was not controlled by a traffic signal, making such entry and exit difficult.
On May 22, 1986, Ayers sent a letter to Ross notifying him that Grand Union’s real estate board had approved the project. The letter contained some of the basic provisions of the agreement negotiated by the parties up to that point, including the size of the store, the term of the lease and renewal option, and the rent. The letter also noted that the board’s approval was subject to three contingencies, one of which concerned the satisfactory resolution of the automobile access issue, and it concluded by stating that “[t]he above is subject to the resolution of a mutually agreeable lease document and its execution by both the partnership and Grand Union.”
Grand Union admits that these contingencies were ultimately resolved by the parties. The negotiations over the specifics of the lease agreement, however, bogged down — resulting in considerable delays in the completion of an acceptable draft. As a result, a final draft of the lease agreement could not be completed until early December 1986; on December 4, Neill Thompson, Grand Union’s regional real estate manager, mailed his last revisions of the agreement to the partners, stating “I am sure you share my relief in a final resolution on this document.”
Before the partners had an opportunity to incorporate these revisions into the lease and sign it, the Georgia Department of Transportation (DOT) announced a plan to build a concrete median down the middle of Memorial Drive, which would block access to the shopping center. The parties learned of the DOT’s plan sometime in early December, just after Thompson sent his final revisions to the partners. In the weeks that followed, the partnership attempted to gain DOT approval for a median cut to allow traffic to cross Memorial Drive and enter the shopping center. Meanwhile, Grand Union entered into discussions with another group of developers to secure space in a shopping center they planned to build just across Hairston Road. This site would have access from Hairston Road and thus a food store there would not be as adversely affected by the construction of a median. On January 26, 1987, while the partners were still trying to secure approval for a cut in the median, Ayers sent a letter to the partnership informing it that, because of the problems caused by the DOT’s plan, Grand Union could no longer proceed with the deal. The partners, already encountering some financial difficulties, attempted to find another lead tenant to replace Grand Union or, if they were unsuccessful, another developer to take over the project. When these efforts failed, they brought this suit against Grand Union — to recover the losses they had sustained as a result of its refusal to sign a lease.
B.
In their complaint, the partners asserted three theories of recovery. First, in count one, they maintained that, although the parties failed to sign a formal lease agreement, they entered into an agreement to sign a lease, which, under Georgia law, created a binding obligation to abide by the terms of the lease they intended to sign. Second, the partners claimed that Grand Union’s repeated indications of interest in making a lease constituted a promise on which they relied to their detriment, a promise which, they suggest, is enforceable under the doctrine of promissory estoppel. Finally, in count three, the partners alleged that, unlike the typical shopping center development project, they prepared this site specifically for Grand Union and that during the course of the nearly year and a half of negotiations a confidential relationship resulted which created a duty of good faith; Grand Union purportedly breached this duty when it backed out of the project. As damages, the partners asked for $550,-000 to compensate them for the sums they expended in developing the shopping center site and, in addition, $4.5 million to compensate them for the profits they would have earned under the lease with Grand Union.
Grand Union answered the partners’ complaint with a general denial of liability and, as an affirmative defense, asked that the complaint be dismissed for failure to state a claim for relief. Following discovery, Grand Union moved for summary judgment. The district court granted its motion. The court rejected the partners’ argument, advanced in support of count one, that Ayers’ May 22 letter to Ross constituted an agreement to make a lease; in the court’s view, the letter was not meant to serve as a contract in and of itself, but was, instead, designed merely to formalize Grand Union’s expression of interest without creating a binding obligation. With respect to count two, the court concluded that Ayers’ statement in the letter — that the real estate board’s approval of the project was “subject to the resolution of a mutually agreeable lease document and its execution” by the parties — made the partners’ reliance on the letter as a promise unreasonable. Finally, as for count three, the court found no merit in the partners’ argument that the dealings between the parties and the existence of a common goal created a relationship of mutual confidence and a duty of good faith. Following the entry of final judgment for Grand Union, the partners took this appeal.
II.
A.
In count one of their complaint, the partners alleged that the combination of correspondence and oral communication between the parties resulted in the formation of an agreement to lease the property on the northwest corner of Memorial Drive and Hairston Road. Although they admit that Grand Union never specifically promised to execute a lease, they contend that there was sufficient evidence from which a jury could infer the existence of such an agreement.
The principal piece of evidence relied on by the partners is the May 22, 1986 letter written by Grand Union’s vice president, Raymond Ayers. The letter informed them that the real estate board at Grand Union had approved the proposed shopping center site, and it set forth the terms of an acceptable lease. These terms essentially echoed those stated in a May 7, 1986 letter that Doll wrote to Grand Union.
The partners also rely on what they describe as numerous occasions on which Grand Union expressed its desire to enter into a lease agreement with them. At one point, the partners apparently felt that the risks inherent in the project were simply too great to proceed without a strong commitment from Grand Union. Ross therefore went to Ayers to try to obtain a less equivocal statement of Grand Union’s intent. Ayers apparently told him that although the partners would have to analyze the risks on their own, he felt certain that Grand Union could make the deal worthwhile for them. When, subsequently, Ross sought financial assistance for the partnership from an old business associate, Tom Kennedy, Kennedy called Ayers and Ayers assured him that Grand Union had every intention of reaching an agreement with the partners. Taken as a whole, the partners maintain that this evidence created an agreement to sign a lease.
Grand Union responds by contending that the May 22 letter and the many oral communications that preceded and followed it constituted, at best, an agreement to agree. They note that while the basic terms of the formal lease agreement were set out in Ayers’ May 22 letter, numerous contractual issues remained to be resolved. In fact, at several points during the partners’ discussions, they encountered issues on which there was serious disagreement. Over the nearly six months of negotiations, a “gillion” drafts of the lease were exchanged. Grand Union suggests that such evidence demonstrates that the parties clearly did not intend to be bound, as of May 22, 1986, by their preliminary discussions, but instead envisioned the continuation of negotiations leading to a mutually acceptable lease agreement. Grand Union points to clear authority in Georgia which holds that agreements to agree or preliminary statements of intent to contract in the future are unenforceable. See, e.g., Hartrampf v. Citizens & S. Realty Investors, 157 Ga.App. 879, 278 S.E.2d 750, 752 (1981) (unless agreement leaves nothing to future negotiations it is unenforceable); Nuclear Assurance Corp. v. Dames & Moore, 137 Ga.App. 688, 225 S.E.2d 97, 98 (1976) (agreements to negotiate in future are not binding); Malone Constr. Co. v. Westbrook, 127 Ga.App. 709, 194 S.E.2d 619, 620 (1972) (same); Russell v. City of Atlanta, 103 Ga.App. 365, 119 S.E.2d 143, 144 (1961) (same). Grand Union maintains that the parties were merely sketching the outlines of an agreement and clearly did not come to an understanding on all the terms of the lease. Unless all the terms were finalized, Grand Union contends that no agreement can be found. See American Viking Contractors v. Scribner Equip. Co., 745 F.2d 1365, 1369-70 (11th Cir.1984) (in Georgia, unless all terms and conditions are agreed upon, no binding obligation arises).
The partners, however, suggest that the case law cited by Grand Union is not applicable to agreements to lease. They maintain that in order to enforce such agreements, the parties need only specify the essential terms of the lease. A meeting of the minds need not be reached as to every provision. An agreement to execute a lease, they note, is not intended to be the lease itself, but is instead designed to express the intentions of the parties as to the essential terms of a lease to be executed in the future. Indeed, the Georgia courts have unambiguously held that such agreements are enforceable despite the parties’ failure to sign an actual lease containing the details of the agreement. As long as the court can extract the essential terms of the lease from the contract to sign the lease, the contract will be enforced.
In Kaplan v. Krantz, 202 Ga. 194, 42 S.E.2d 371 (1947), for example, the Supreme Court of Georgia enforced a contract to sign a lease that had not been executed. The plaintiff in that case purchased a store from the defendant. In the contract of sale, the plaintiff received an option to lease the property adjoining the store for a period of three years at a specified rent. When the plaintiff sought to exercise the option, however, the defendant refused to sign a lease. The court held that it would enforce the agreement as long as the essential terms of the lease were evident from the contract; an executed lease form was not necessary. Id. 42 S.E.2d at 373.
The facts in Shell Petroleum Corp. v. Jackson, 47 Ga.App. 667, 171 S.E. 171 (1933), bear a remarkable resemblance to the present situation. The plaintiffs in that case owned a piece of property on which the defendant wished to build a service station. The plaintiff made two proposals to the defendant, both of which granted the defendant a ten-year lease but on slightly varying terms. The defendant accepted one of the proposals, and the plaintiff began to clear the site for construction. The plaintiff then prepared and signed a lease incorporating the basis of their agreement and forwarded it to the defendant. The defendant, however, maintained that upon closer analysis it had determined that the rent was too high, and it refused to sign the lease. The court concluded that the parties reached an agreement to lease and the defendant’s refusal to sign the lease constituted a breach of that agreement. See also Matlock v. Duncan, 220 Ga. 200, 137 S.E.2d 661, 663 (1964) (oral agreement to lease specified consideration, subject matter, and purpose and thus was enforceable despite parties’ failure to execute completed lease agreement); Merry v. Georgia Big Boy Management, Inc., 135 Ga.App. 707, 218 S.E.2d 694, 696 (1975) (oral agreement to lease contained essential terms and was enforceable despite failure to sign written lease). The approach taken by the Georgia courts in this area is not without support elsewhere in the nation. See, e.g., 51C C.J.S. Landlord and Tenant § 190 (1968 & Supp.1990); Annotation, Requirements as to Certainty and Completeness of Terms of Lease in Agreements to Lease, 85 A.L.R.3d 414 (1978).
Naturally, the partners contend that the written and oral communications between the parties clearly articulated the essential terms of their understanding. By concentrating on the level of specificity required to create a binding lease agreement, however, the partners have ignored the primary question concerning whether the parties intended that their preliminary negotiations create a binding legal obligation. Unless the parties intended to be bound by the statements they made during these negotiations, they did not enter into a contract to sign a lease. Every possible provision of a contemplated lease may be discussed and agreed upon, but unless the parties intend that these discussions be binding, no contract has been formed. When the parties express their intention to be bound and they specify the basic terms of the lease, the courts will enforce the contract, and thus the lease, to avoid frustrating the parties’ original intent. When such indications of intent are absent or are explicitly disavowed, however, the justification for enforcing the proposed lease is wholly absent. The court does not address the terms of the proposed lease until it has satisfied itself that the parties did indeed intend to be bound. See Gunderson & Son, Inc. v. Cohn, 596 F.Supp. 379, 383 (D.Mass.1984) (under Massachusetts law, whether parties are bound by informal initial agreements is question of intent); cf. John Bleakley Ford, Inc. v. Estes, 164 Ga.App. 547, 298 S.E.2d 270 (1982) (although both parties intended agreement to be binding, agreement was unenforceable as parties failed to specify essential terms).
The partners acknowledge that, unlike the cases on which they rely, Grand Union never explicitly promised to sign a lease. Instead, they suggest that an agreement to sign a lease can be inferred from the circumstances surrounding the discussions between the parties. Such an inference, however, is entirely unwarranted in light of Grand Union’s clear and unambiguous expression of its intention not to bound. The May 7 letter from Doll to Ayers requested that Ayers sign and return the letter indicating his consent to the terms contained therein. Such a letter, signed by Ayers, could conceivably represent the requisite indication of intent to be bound and could therefore create an agreement to sign a lease. See, e.g., Chase v. Consolidated Foods Corp., 744 F.2d 566, 571 (7th Cir.1984) (under Illinois law, letter of intent could serve as enforceable contract if parties so intended). Ayers, however, never signed the letter. Furthermore, the letter Ayers sent to the partnership on May 22 unmistakably stated that Grand Union did not intend to be bound by any of the terms announced in the letter until a complete and final lease agreement had been signed by the parties. In fact; every version of the lease exchanged between the parties included a clause which stated that the lease would not become final until it had been fully executed.
The former Fifth Circuit faced a similar situation in Dumas v. First Federal Savings & Loan Association, 654 F.2d 359 (5th Cir. Unit B Aug. 1981) (applying Georgia law). The plaintiff in Dumas alleged that a letter which contained the details of a proposed purchase and which was initialed by both parties created a binding contract. The letter stated that it was to “act as the basic agreement, subject to a mutually acceptable Purchase and Sale Agreement.” The court concluded that the defendant clearly did not expect that it would be bound by the terms in the letter in light of the language conditioning a final agreement on the execution of a mutually acceptable contract. Although Dumas did not involve an agreement to lease and the court did place emphasis on the fact that all terms and conditions must be agreed upon under traditional principles of Georgia contract law, the court’s analysis of the conditional nature of the letter is still instructive. Language which conditions the terms discussed on the execution of a finalized document relates directly to the intentions of the parties. The fact that the Dumas court required that every term be agreed upon rather than simply the essential terms does not affect its analysis of the preliminary issue concerning intent. As that court stated: “The letter agreement states on its face that it is subject to a later, ‘mutually acceptable’ agreement; the provision can only mean that the parties did not intend the letter agreement to be a binding, enforceable contract.” Id. at 361 (emphasis added); see also In re Harvey Probber, Inc., 50 B.R. 292 (Bankr.Mass.1985) (letter between lender and borrower did not create contractual relationship where letter also indicated intention not to be bound until completed contract executed).
There is evidence in the record to suggest that even the partners realized that Grand Union had not committed itself. Doll, in his deposition, stated that he had been dissatisfied with Ross for his failure to finalize an agreement with Grand Union and other tenants. His dissatisfaction and discomfort suggest that he knew that without a completed lease agreement the partnership would be exposed to considerable risk. It certainly was not impossible for a lease agreement to be concluded prior to the time the partnership put down its largest nonrefundable earnest-money payment on the land it had contracted to purchase or before it obtained financing from Tom Kennedy. In fact, although there is some dispute in the record concerning this point, Ross stated that a lease had been completed with another lessee, General Cinema, contingent only on the finalization of the agreement with Grand Union. Moreover, Doll stated that it had been the intention of the partners to have all such leases completed well before the nonrefundable development costs had been incurred to provide what he described as a “comfort factor.” The partners, therefore, knew that without a signed lease they could not be sure that the deal would go through, and although Grand Union did indeed express its willingness and desire to proceed with the project, it steadfastly maintained that it would not be bound until an agreement had been signed. The partners cannot contend that despite these specific statements to the contrary, the parties actually entered into an agreement to sign a lease. See also Hartrampf, 278 S.E.2d at 752 (“Where it is evident from a written instrument, that the parties contemplated that it was incom-píete, and that a binding agreement would be made subsequently, there is no agreement.”) (quoting Board of Drainage Comm’rs v. Karr & Moore, 157 Ga. 284, 121 S.E. 298 (1923)); Russell, 119 S.E.2d at 144 (where facts reveal that parties did not intend to be bound until contract signed, court will not enforce agreement).
Courts are often willing to infer terms and conditions in contract analysis if certain factual predicates are present. Courts will even enforce an unexecuted agreement if it appears that the parties have expressed their assent. See Barton v. Chemical Bank, 577 F.2d 1329, 1336 (5th Cir.1978) (whether oral contract may be enforceable even when parties contemplate execution of written agreement is question of intent). In such a situation, the court is merely enforcing what the evidence suggests was the intent of the parties. Yet, when the parties make their intentions clear, there is no basis for a court to step in and contradict their explicit desires. A court surely would not infer consent to an unsigned agreement when the parties clearly predicated a binding agreement only on the actual execution of the contract. So here we are unwilling to allow a jury to infer an agreement to sign a lease when one of the parties specifically declared its intention not to be bound until a lease was drafted and signed by both parties.
B.
The partners also claim that the trial court erred in granting Grand Union summary judgment on their promissory estop-pel claim. They maintain that even if we are unwilling to find that Grand Union breached a contractual obligation, we should conclude that the equitable doctrine of promissory estoppel renders Grand Union liable.
The Georgia legislature adopted the doctrine of promissory estoppel as articulated in section 90 of the Restatement (Second) of Torts in 1981. See Ga.Code Ann. § 13-3-44(a) (1982). Georgia courts, however, had utilized the doctrine long before this time. See, e.g., Insilico Corp. v. First Nat’l Bank, 248 Ga. 322, 283 S.E.2d 262 (1981) (citing precodification cases). To prevail on a promissory estoppel claim, a plaintiff must demonstrate that (1) the defendant made certain promises, (2) the defendant should have expected that the plaintiff would rely on such promises, and (3) the plaintiff did in fact rely on such promises to his detriment. See Ga.Code Ann. § 13-3-44(a).
Essentially, the partners support their promissory estoppel claim with the same evidence they used to support their breach of an agreement to lease claim. Again, they admit that Grand Union made no explicit promises but maintain, instead, that the record as a whole presents sufficient evidence of assurances by Grand Union to justify their reliance. Ross testified, on deposition, that Grand Union constantly reiterated its interest in the property; when, for example, he told Grand Union that the partnership had doubts about proceeding with the project, Ayers told him that Grand Union would “make the economics work out.” Most importantly, the partners, as they repeatedly stated in their depositions, believed the May 22, 1986 letter from Ayers constituted a letter of intent and thus a promise to enter into a lease. Although the partners had incurred some initial expenses prior to receiving that letter, it is obvious that they would not have proceeded with the project in the absence of what they perceived as a promise to conclude a lease agreement. In the aggregate, this evidence is more than sufficient to create a jury issue as to whether a promise was made by Grand Union.
More problematic, however, is the question of the reasonableness of the reliance the partners placed on this alleged promise. Central to the resolution of this issue is a determination of the significance to be given to the conditional language contained not only in Ayers’ May 22 letter but in each draft of the lease as well. These documents clearly articulated Grand Union’s desire not to be bound until the final draft of a lease was executed.
In an endeavor to convince us that the partners’ reliance on its statements of intent was not reasonable, Grand Union attempts to fabricate a rule that finds promissory estoppel inapplicable to agreements to agree and other unenforceable quasi-contractual agreements. To do so, it relies on a hodgepodge of equitable estoppel eases, fraud cases, and a unique promissory estoppel rule that clearly applies only in the context of insurance contracts. According to Grand Union, this “powerful and consistent line of state and federal Georgia cases” holds that agreements to agree can never, as a matter of law, support a promissory estoppel claim. This illusory doctrine is created by taking quotations out of context and by simply deleting references to the actual body of law the court was addressing in order to create the impression that the quotations used apply to the doctrine of promissory estoppel. Grand Union urges the court to find that unless the agreement between the parties is legally enforceable, promissory estoppel is an inappropriate avenue for recovery. Such a holding would utterly eviscerate the doctrine of promissory estoppel which was designed specifically to address cases where the plaintiff has no legally enforceable rights but has suffered a loss due to reliance on the defendant’s promises. See 20/20 Vision Center, Inc. v. Hudgens, 256 Ga. 129, 345 S.E.2d 330, 335 n. 7 (1986) (doctrine provides avenue of recovery when legal impediments would otherwise prevent plaintiff from pursuing cause of action).
What the cases cited by Grand Union do hold is that certain promises may be so vague and uncertain that reliance on them would not be reasonable. See, e.g., American Viking, 745 F.2d at 1372. That is clearly not the case here. The partners have argued, and Grand Union has not seriously disputed, that the essential terms of their contemplated lease agreement were set out in the May 22 letter. Surely a promise premised on such explicit terms is certain enough to survive this hurdle, and it cannot be said that the letter, taken together with the other oral promises and assurances Grand Union purportedly made, was too indefinite or uncertain to make reliance reasonable. Clearly, some agreements to agree or promises from one party to another are so sketchy or general that a finding of reasonable reliance would be unwarranted. Here, however, the promise made by Grand Union is far more than a general statement of intent.
Although we are unwilling to lay down any general rule prohibiting promissory es-toppel claims in the context of agreements to agree, the partners still must demonstrate that they acted reasonably in relying on Grand Union’s statements. This is not an easy task in light of the company’s repeated caveats that it did not intend to be bound until a final lease agreement was signed. This type of conditional language is different from a mere agreement to agree. Parties may indicate their intention to complete an agreement in the future without conditioning their position on the execution of a formalized document. In fact, it appears wholly contradictory to assert that Grand Union “promised” to sign a lease while simultaneously insisting that only a completed document would serve to bind it. The question, therefore, is whether it was reasonable for the partners to rely on Grand Union’s assurances in light of this condition.
The partners claim that the decision of the Georgia Supreme Court in 20/20 Vision Center, Inc. v. Hudgens, 345 S.E.2d 330, 335 (Ga.1986), indicates that the presence of such conditional language does not prevent a finding of reasonable reliance. As they note in their brief, however, promissory estoppel claims are extremely fact-specific and are not susceptible to the application of generalized rules. In Hudgens, the plaintiffs had already negotiated the major terms of the lease and had exchanged drafts with the defendant before the latter’s attorney began emphasizing that the terms set out in the letters between the parties were “subject to negotiation, execution and delivery of a written lease.” In addition, a similar clause in the lease itself was only inserted in the final drafts of the agreement. Although the Georgia Supreme Court did not analyze the facts in any detail, it appears that the court reversed the grant of summary judgment because the plaintiffs had already relied on the defendant’s promises before the conditional language began to appear. In addition, the plaintiffs in Hudgens did not even raise a promissory estoppel claim at the trial court level. Although the supreme court stated that there were “triable issues of fact” under the doctrine of promissory estoppel, its holding technically was not a reversal of the trial court’s grant of summary judgment, but a remand for consideration of the case under a promissory estop-pel theory. Presumably, the trial court would have been justified in dismissing the case on remand as long as it explicitly addressed the feasibility of a promissory estoppel claim.
In this case there is simply no basis for the contention that the partners’ reliance was reasonable. To hold otherwise would render potential tenants like Grand Union incapable of protecting themselves against liability during the course of negotiations. It is difficult to imagine what else Grand Union could have done to pursue the project in this case while simultaneously avoiding being bound until a lease was signed. To allow a promissory estoppel claim to proceed in this context would be to allow equity to denigrate a term expressly bargained for between the parties. It is important to remember that this clause also had an upside for the partners as well. If during the course of negotiations, another grocery chain had offered the partnership a higher rent than Grand Union, they would have been free to accept it.
Grand Union did indeed make promises to the partners. It promised them that it was interested in leasing space in their development. It promised them that it planned to pursue negotiations. It promised them that it had every intention of finalizing an agreement with them. What Grand Union also made clear was that despite its interest in the site and its desire to consummate a long-term lease, it had no intention of becoming obligated until the lease was drafted, approved, and signed by both parties. The partners’ reliance on Grand Union’s statements of intent in light of their conditional nature clearly was unreasonable. See Protective Life Ins. Co. v. Robinson, 193 Ga.App. 316, 387 S.E.2d 603, 605 (1989) (promissory estoppel does not transform a conditional promise into an unconditional promise).
Even if we were to find that Grand Union made a promise to sign a lease and that the partners’ reliance was reasonable, we still would not find in their favor. Promissory estoppel is an equitable doctrine designed to prevent the intricacies and details of the law from frustrating the ends of justice. The Georgia statute provides that promises that reasonably induce reliance are binding “if injustice can be avoided only by enforcement of the promise.” Ga.Code Ann. § 13-3-44(a) (emphasis added). In this case, Grand Union pursued a lease for this property with genuine enthusiasm. Its decision to pull out of the negotiations was due not to bad faith, but to the occurrence of an independent event, unforeseen by either party, which destroyed one of the essential elements of the negotiation — access to the shopping center. The DOT’s plan dramatically altered the context in which the parties had negotiated an agreement and undermined the basis of the bargain Grand Union thought it would receive. The partners knew all along that automobile access to the shopping center was crucial to the deal. In fact, it appears that the partners knew that the deal was in peril as soon as the DOT’s plan was announced.
In an equitable action such as count two, the question is who should be responsible for bearing the burden caused by this unforeseen event. Grand Union appears to have protected itself from just such a contingency by subjecting its approval of the deal to the execution of a mutually acceptable lease. When the parties have apportioned the risk among themselves, a court should be hesitant to step in and contravene their explicit agreement. Due to an unforeseen event outside the control of either party, one party must bear the burden. Either Grand Union is forced to occupy a mall with substantially decreased access or the partners are required to find another tenant. In this case, where neither party is to blame, we are content to let the burden remain with the partners.
C.
Finally, the partners claimed that during the year and a half of negotiations with, and attempts to find a site for, Grand Union, a confidential relationship developed between the parties which was breached when Grand Union backed out of the deal. The partners maintain that the parties were engaged in a mutual endeavor with the shared goal of finding a site and constructing a shopping center for Grand Union’s use. Georgia law defines confidential relations as follows:
[WJhether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.
Ga.Code Ann. § 23-2-58 (1982).
While we accept, as the partners contend, that a “confidential relationship may exist between businessmen,” Cochran v. Murrah, 235 Ga. 304, 219 S.E.2d 421, 423 (1975), the facts of this case simply do not support any such finding. The parties fought over the terms of the lease agreement for approximately six months. This type of arms-length bargaining and the creation of a landlord-tenant relationship does not meet the requirements for finding a relationship of mutual confidence. Indeed, both parties had the same goal in this case, and they worked together to achieve it. But if that were the requirement for the formation of a confidential relationship, then most business transactions would qualify. Much more than a common goal is necessary to impose an obligation of good faith under section 23-2-58 of the Georgia Code.
III.
The district court appropriately concluded that the parties did not enter into an agreement to lease. To hold otherwise would ignore Grand Union’s stated intention not to be bound until both parties executed a lease agreement. Similarly, summary judgment was properly granted on the partners’ promissory estoppel claim. The partners’ reliance on any alleged promises by Grand Union was unreasonable in light of their conditional nature. Finally, the parties did not enjoy a relationship of mutual confidence and thus Grand Union owed the partners no duty of good faith. Accordingly, the judgment of the district court is
AFFIRMED.
. In reviewing the trial court’s grant of summary judgment, we consider the record in the light most favorable to the nonmoving party (here, the appellants) and determine whether that party has demonstrated the existence of a genuine issue of material fact. Browning v. Peyton, 918 F.2d 1516 (11th Cir.1990). Unless there is evidence in the record on which a jury could return a verdict for the nonmoving party, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).
. The precise nature of these contracts is not clear; for convenience, we refer to them as options. The important point for our purposes is that the partners paid earnest money for the right to purchase the parcels and lost all or a part of it when the project fell through.
. Frederick Ross did not join his three partners in bringing this suit. Consequently, our references infra to the partners, as the appellants, do not include Ross.
. These theories were asserted in counts one, two, and three of the complaint. The complaint contained six counts in all, but only the first three are involved in this appeal.
. Although Ayers’ letter also contained three specific contingencies, Grand Union admits that all three were resolved to its satisfaction either at the time the letter was written or shortly thereafter.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding
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_appel2_1_4
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
COLGATE-PALMOLIVE-PEET CO. et al. v. LEVER BROS. CO.
No. 5774.
Circuit Court of Appeals, Seventh Circuit,
April 8, 1937.
Rehearing Denied June 21, 1937.
•Marston Allen, Erastus S. Allen, and Frank F. Dinsmore, all of Cincinnati, Ohio, Louis Quarles, of Milwaukee, Wis., Mason Trowbridge, of Jersey City, N. J., and Arthur C. Denison and Newton D. Baker, both of Cleveland, Ohio, for. appellants.
C. B. Tinkham, of Hammond, Ind., Leroy C. Shonts, John B. Macauley, and Frank Parker Davis, all of Chicago, 111., Ramsay Hoguet, of New York City, Floyd S. Davis, of Cambridge, Mass., and Geo. I. Haight, of Chicago, 111., for appellee.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
EVANS, Circuit Judge.
Appellants and appellee are competitors engaged in making and selling soap. Their activities cover the entire industry. The competition and the competitive methods which led to this litigation concern themselves with laundry soap. The size of this branch of the industry as conducted by the three parties to the litigation is tremendous.
Appellants assert that they jointly own the patent covering the product of the inventive mind which produced a better and more acceptable soap than was ever before offered to the housewife or the laundryman. They ask the court for the protection which this discovery deserves. Appellee denies all such claims of merit and distinction, disputes all its adversaries’ asserted right to patent protection, and denies infringement ; hence, this controversy.
The patent granted to Dallas R. Lamout (and assigned to appellants) to reward one who made an original and unusually valuable contribution to the science of soap making, is asserted and assailed. The validity of the patent is denied; its infringement is disputed.
Many hundreds of thousand words have been spoken by witnesses who proclaimed their belief in the merit of Lamont’s discovery. An equal number of witnesses assert that it would be a travesty on justice to honor Lamont with the name of inventor or to characterize what his coworker did, as invention.
The District Court held the patent was not infringed. On the issue of validity, he found not squarely, but invoked disputes over inferences when he used the following language:
“Lamont patent is invalid unless limited to a process of controlled steam inflation and the product thereof and as so limited is not infringed.”
Validity and infringement of patent No. 1,652,900, issued December 13, 1927, to Dallas R. Lamont, are the subjects of our inquiry. The patent consisting of eleven claims covers both soap products and processes of manufacturing soap. The product is almost exclusively used for laundry purposes.
Lamont was an employee of the Industrial Spray Drying Company, which was entitled to his discoveries and inventions and to whom he duly assigned his patent. Through appropriate steps, the title and right to use the patent were transferred to appellants. Colgate-PalmolivePeet Company, formerly Colgate & Company, obtained an exclusive license and started production in 1927 of a soap, called Super Suds. The appellant, Procter & Gamble, soon came out with a product known as Selox. The latter company was sued for infringement, and it purchased a half interest in the patent.
In 1929, appellee, a pioneer and always a very large manufacturer of soap for laundry purposes, brought out a laundry soap. It obtained patents which covered both the product and the process for making this soap. The extent and rapidity with which this so-called new laundry soap business grew is shown by the fact that in 1930, three years after the appearance of Super Suds, the public had used 500,000,000 cartons of the combined products of the parties. It may be fairly and conservatively said, speaking generally and not technically, that the soaps made by the parties to this litigation, for laundry purposes, are much alike. Admittedly they today dominate the field of granular washing soap.
Appellee called its laundry soap Rinso long before 1927. It never changed its name. Appellants assert that while the. name remained the same, the product, and the process by which the soap was made, changed after appellants brought out their soap made in accordance with Lamont’s patent teachings.
Colgate first called its soap made under the Lamont patent, Super Suds. It later brought out Palmolive Beads.
Procter & Gamble has given its laundry soap different names: Selox, Chipso, Chipso Granules, Oxydol, and Ivory Snow.
' The application for Lamont’s patent was made May 25, 1927, and it issued December 13, 1927. The specifications are extremely long and somewhat involved. There are eleven claims of which eight are contested. The first five are product claims. Three process claims, 7, 8, and 9, are also in issue. In the margin appear claim 2, a product claim, and claims 7 and 8, two process claims. These claims are presented as typical. Appellee emphasizes claim 1, a product claim, and it is also reproduced in the margin.
A brief statement of the history and the art of soap making, as well as a statement of what Lamont did, follows:
Commercial soap is ordinarily made by boiling soda lye and fats and oils in a kettle. When salt water is added to the mass, the kettle contents separate into layers of which the top one forms the basis for the ordinary soap of commerce. This material at kettle temperature is a molten mass and its composition is surprisingly constant at 70 per cent solids combined with 30 per cent water. At the temperature at which this soap is finished, i. e., between 170° and 212° F¡, the soap is a heavy moltei? mass and will flow in the mass, although it is not a liquid and is not free-flowing. In this condition the soap is called kettle soap, or more technically, neat soap. This condition is spoken of as the “neat soap” phase.
When neat soap is cooled to a temperature of 150° F. or below, it changes and becomes what is known as solid soap. Also if moisture is driven out of soap when in the neat soap phase, the transformation point from the neat phase to the solid phase takes place at higher and higher temperatures.
Appellants claim Lamont taught the art to spray this nonliquid material when in the neat phase, and during its transformation into the solid phase, to cause the soap substance itself to divide into particles which may be described as puffed or inflated.
If solid soap containing the percentage of water of neat soap is heated to a point above 150° F. (depending somewhat upon the particular fats used), the material is transformed into its neat soap or kettle soap phase, but once this phase has been reached, further rise in temperature can be continued without reducing the viscosity of the soap although in some instances its stringiness can be reduced at the higher temperatures. This quality of soap constitutes a sharp distinction between it and other kinds of heat fusible material, which as heat is increased become more fluid.
Appellants assert that the usual practice in spray processing of other materials required them to be first brought to a condition which formed fine round drops when sprayed which is impossible with neat soap. Neat soap is not film forming and will not break up into true drops when sprayed. It merely breaks into fragments.
Another phase in which soap can and does exist, is the “nigre” or soap solution phase. This phase, as in the instance of the neat phase, has a definite water content, and cannot exist with less than about 70 per cent of water. At a temperature around 170° F. and above, it is a true free-flowing thin liquid. When at lower temperature, about 150° F., and below, nigre does not change into solid soap but instead congeals into a wet-gelatinous, elastic-like material.
The nigre phase of soap is one in which the material can readily be sprayed, but when it is sprayed and dried by driving out moisture, it does not puff.
Intermediate between neat soap and nigre in respect of moisture content, is a substance known as “middle soap.” Where water is present in soap in an amount less than about 70 per cent, and greater than about 30 per cent, middle soap exists. At kettle temperature it is a thick viscous gum, and further heating does not change its consistency. At no temperature can it be pumped or sprayed, and it can be stirred only with great difficulty. Below about 150° F. it congeals into an opaque, rubbery mass.
The existence of this middle soap phase is important in the present case because attempts to bring neat soap into a condition for spraying by thinning it with water are all hut impossible. Soap solution can practicably only be made by dissolving small pieces of solid soap in a large amount of water, i. e., by adding soap to water and not water to soap. Thus soap is a substance which has to be made into a thin solution to bring it to readily sprayable condition, but this cannot ordinarily be done by the addition of water to neat soap.
Of the three phases of soap, neat soap, middle soap and nigre, the only one which is film forming and which will form round drops upon being sprayed is nigre. The drop or rounded form is a valuable property in any spray process product and Lamont, although he sprayed neat soap and hence did not form round drops in * his spray, yet by reason of his later puffing treatment converted the material into gen-'erally rounded particles,. and moreover into particles of substantial size.
Soap also is heat sensitive and will burn at temperatures in the neighborhood of 385° F.
When sodium silicate is added or mixed in kettle soap, in a crutcher, as is ordinarily done, the neat or kettle soap remains in the “neat” condition although the water content may go as high as 40 per cent without reaching the middle soap phase. If the mix is treated with water there is a production of “middle soap” in the same manner as when water is added to kettle soap. There is no distinction therefore between kettle or “neat soap” in the pure state and with an appropriate amount of silicate of soda added. Both have the same phase characteristics.
The spray processing, with which the present patent is concerned in its process aspects, can be divided into two general classes in the prior art, spray cooling (where the sprayed particle becomes' solid during its passage from the spray to the point of collection due to drop in temperature) and spray drying (in which moisture or other solvent is driven off from the sprayed particles leaving them at the final temperature of collection in a solid state for this reason).
Neat soap is a substance which recommends itself to spray cooling, because it changes to solid phase at a relatively high temperature. Only one commercial attempt to spray cool neat soap appears of record, and the substance was not particularly desirable because it was in large, jagged fragments, without puffing. Such a substance is not free flowing as it would be if in rounded particles. Such a product is not soluble in the manner of a puffed soap particle.
Neat soap when much of the moisture has been driven off burns quite readily.
Substances which had formerly been spray dried at high temperatures showed a tendency to glaze. Neat soap particles with a glaze upon them would resist ready solubility. Lamont found that neat soap would puff at high temperatures and not glaze.
A common practice in spray drying was to preconcentrate the material, such as milk, before spraying for purposes of economy. Neat soap could not be preconcentrated. Nigre soap cannot be preconcentrated because it will turn into middle soap, which cannot be pumped nor sprayed. ■
As a result of the peculiarities of neat soap, soap makers changed its nature by the addition of harsh chemicals prior to spraying.
They added soda ash to the product. The result of adding soda ash in sufficient quantities to neat soap is that it becomes in the hot state a composition of particles of matter floating in a liquid, a condition known as a “slurry.” Slurries can be thinned by water, or if too thin, can be thickened by boiling. Hence spraying of soap-soda ash compositions did not present any conditioning problem preparatory to spraying.
A soap-soda ash composition solidifies quickly because the soda ash takes up water rapidly. Hence it is adapted to spray cooling. No heated drying air is required, and the final product will contain the same moisture content as the original slurry, in the usual practice.
Such a product is known on the market as washing powder, or by a term “soap powder.” In the instant case it is necessary to distinguish between soap powder and powdered soap, the latter being the terms applied to soap when it is ground up from the solid state.
Soap powder or washing powder is a harsh, chemical detergent. Its action is drastic. It acts chemically in attacking dirt, whereas soap acts through suds, and tends to emulsify the dirt.
It was soap powder which constituted the commercial laundry soap product, which had been made and sold in large quantities by soap makers.
Attempts had been made in the art to spray dry soap, in contradistinction to spray cooling, although this was only experimental. The workers invariably reduced the neat soap to a nigre or soap solution before spraying, and what they made was a very fine powdery and dusty product, of glassy thin-walled particles. This product lumped and balled when stirred into warm water.
There had been flaked soap on the market, this being the most widely used form of soap dispensed in packages.
There had been powdered soaps on the market, and granular soaps in coarser form, these being solid soap reduced by mechanical grinding. The powdered soaps are dusty and lump and ball badly in warm water. The granular (larger sized chunks) do not possess any puffed quality, and naturally are not rounded in form and are slow to dissolve.
Neat soap, the soap phase with which Lamont dealt, is a material which appellants describe as sui generis. It cannot be water thinned, or heat plasticized beyond a certain point. It cannot be sprayed to form true drops. The substance can be spray cooled, but not to form a satisfactory product. The commercial package soaps prior to Lamont had been flaked soap, powdered soap, and granulated soap, all of these beiug made from soap which was first brought to solid form and then granulated.
The spray processed soap product which had been commercialized prior to Lamont, was not unadulterated soap, but was a soap-soda ash composition called soap powder or washing powder.
Lamont’s Product. It may be fairly said that the Lamont patent deals with finely divided soap products, the material used being soap as distinguished from soap powder or washing soap in which soda ash predominates. Lamont uses molten soap taken from ordinary kettle soap. He claims his soap is more quickly and completely soluble than soap flakes, less fragile, so less likely to break up in the package. His product is distinguishable from granular or shredded soaps or soap powder in that it is less dusty and more soluble. For his product it is claimed that it is more uniform, flows more freely from carton, and does not lump when spread over water. The novel characteristics of his soap are set forth by counsel as follows:
“(a) rounded particle shape, not geometric spheres, but characteristically near spherical, potato shaped and reasonably smooth rounded formation * * * as distinguished from fragmentary, sharp cornered or shredded conformation; (b) particle size readily perceptible to the unaided eye, giving in the mass the appearance of independent balls with interstices visible between them.”
Qualities (a) and (b) taken together give the product a free-flowing, non-caking, non-lumping, and dust free characteristic which are desirable and novel. There is evidence to support these claims so stoutly asserted by appellants.
His process claims call for a structure with a tower. The soap is sprayed, etc., and the product passes out of the bottom. It is not contended that the apparatus is novel, but patentable novelty is asserted for the process by which the soap is treated.
We herewith set forth, greatly abbreviated, the substance of the inventor’s own statement as it appears in the specifications. We have however eliminated, because of its great length, his description of the various steps in his process, including temperature statements.
“The * * * invention relates to the production of a soap product in reasonably fine state of division, * * * having certain useful novel physical properties and with a process of obtaining and controlling these physical properties in the product. The invention contemplates * * a. * * * soap as ordinarily produced by * * * commercial manufacture * * * which product * * * is * * * distinguished from so-called soap powders or washing powders which contain a predominating proportion of soda ash or similar ingredient. * * * The * * * invention is based on the discovery that a new product * * * can be produced * * * from molten soap of the usual composition and heavy flowing but not particularly viscid consistency ordinarily obtained in the manufacture of soap which is essentially different from products heretofore produced directly from such molten soap.
“Soap flakes, chips and the like, are not quickly and completely soluble in water of temperature convenient for washing. When the usual soap flakes are poured into water and stirred * * * they may be seen for some time * * * partly undissolved, and if not stirred until completely dissolved some part * * * collects at the bottom of the dish. * * * Undissolved soap frequently sticks to garments being washed and appears as a spot on the laundered article. Also, in washing machines, a considerable amount of the soap usually passes the washing machine undissolved. The most quickly * * * and most nearly * * * soluble soap flakes are those which are the thinnest, and * * * (such) are quite frail and * * * break up during manufacture, shipment and use so that a considerable amount of dust forms. * * * Soaps in finely divided condition, granulated soaps, shredded soaps, soap powders, and the like are usually dusty and cause discomfort to the user. Such soaps tend to lump in water and remain partly undissolved. * * * (They) * * * cannot be poured * * * out of the package with * * * exactness as to amount. They frequently cake * * * in the carton and to be shaken out at all, require the removal of a substantial piece of the carton. The product of the present invention is uniform in particle size and is quickly and completely soluble; it is free-flowing and does not lump or cake in the carton or in water, and it is not dusty, * * * (which) qualities * * * give it a usefulness not heretofore obtained. * * * A description and definition of the product in terms of these qualities * * * (and) structural and * * * physical properties * * * which give it such qualities, and a * * * definition of the process by which such product is obtained constitute the- subject matter of this.application.'
“The drawings * * * illustrate certain of the novel physical properties of the product and show an apparatus in which the process of the present invention can be successfully conducted. * * *
“The process of the present invention involves a spray treatment and drying of * * * soap material under certain particular controlled process conditions. * * * The apparatus consists basically of the principal drying or treating chamber 1. The molten soap is delivered into the tower 1 in the form of a spray by means of nozzles 2 locáted at appropriate intervals about the periphery of the upper end of the tower 1, as shown. The soap is delivered to the nozzles 2 through the soap line 3 which communicates with the soap mixing tanks or crutchers 4. The soap is withdrawn from the crutcher 4 by means of a suitable pump 5 and is forced through the heater 6 into line 3 and from thence to nozzles 2. The pump 5 maintains the soap in line 3 and at the nozzles 2 at a pressure appropriate for properly spraying the soap,.as it issues from the nozzles, into uniform and reasonably finely divided condition. The heater 6 is preferably provided with a thermostatic control device 7 which controls admission of heating steam to the heater and thus "regulates the temperature of the soap discharged from the heater to a substantially constant proper value. The line 3 beyond the heater 6 is steam jacketed, and the steam supplied to the line is regulated by an automatic pressure controlling device 8 which functions to maintain the steam at a pressure which is equivalent to the condensation pressure for steam at a temperature equal to that of the soap as it leaves the heater 6. With this arrangement the temperature of the soap leaving the heater remains the same until the soap is delivered into the tower 1 through the nozzles 2, and a uniform temperature of the soap at all of the nozzles 2 is assured.
“The heated drying or treating gas is supplied to the tower 1 through duct 9 * * * which enters the top of the tower as shown. Inside of the tower under the discharge end of the duct 9 is located a distributor 10 designed to distribute th’e incoming gas uniformly across the section of the tower and to restrict whirling and eddying of the gas as it enters the tower. The distributor 10 is positioned above the soap nozzles 2 so that at the time the gas comes into contact with the soap particles issuing from the nozzles it is distributed reasonably uniformly across the tower and is proceeding downwardly through the tower in an orderly manner of flow without substantial whirling or eddying. Thus, the particles of the sprayed liquid soap are carried downwardly in orderly positively controlled flow through the tower by the drying gas. The drying gas comes into contact with all of the sprayed particles of soap at substantially the same temperature, and all of the particles are positively propelled through the tower so that every particle is subj ected to a similar treatment by the drying gas for a substantially similar length of time. As here shown, the heated treating gas supplied to the tower 1 through duct 9 consists of products of combustion from the oil burning furnace 11 diluted and reduced to the proper temperature by air admitted to the system through the damper controlled opening 18. Further dampers 19 and 20 are provided for facilitating operation and permitting ready regulation and control of air volumes and air temperatures. The * * * contents of the tower are continuously discharged through the * * * opening * * * at the bottom of the tower. * * *
“The individual component rounded particles of the present product are ordinarily hollow unitary bodies. Each particle is a dei ached unit consisting of a shell or wall of the dry soap material solidified into the characteristic rounded particle shape and enclosing within it a single void or hollow space. The unitary hollow particle structure is shown in * * * (the figure). This is in contrast to a spongy material consisting of granules or particles of sponge-like or honeycomb structure. In such products the component particles are usually of irregular fragmentary character and the interior of the particle is a mass of interlacing walls and pores rather than a single void. The thickness of the walls of the particles is controlled by the condi1 ions of the process and may he varied depending upon the characteristic desired in the finished product such as particle size, bulking weight, speed of solubility, etc. The practical limiting minimum thinness of the particle walls is determined by tlie wall strength which is required to prevent the particles from crushing or breaking under the conditions normally encouritered in bulking of the product in bins, handling it through conveyors and filling machines, and shipping it for use. The particles of the present product are made sufficiently stable so that they will withstand such normal handling and shipping conditions without breaking down. This hollow unitary particle structure is important in making the product quickly and completely soluble and at the same time providing a product of substantial particle size which is free from dust, stable, and free-flowing.
“Soap products made by spraying molten soap as heretofore proposed are normally of shredded and fragmentary particle form. The novel structure properties of the present product just described are the result of certain particular process conditions. To obtain from the usual molten soap the characteristic rounded particle formation and to produce a product substantially free from excessively 'elongated particles, shreds, and the like, it is necessary that the temperature of the soap as sprayed be controlled within a proper range. * * *
“Definite spaces or interstices betwreen the particles are clearly evident, and these spaces appear clean and free from any dust or fine powder. The product illustrated in Figures 2 and 3 (of the patent) is, as stated above, of an average particle size of about 0.75 mm. In this product substantially none of the particles are as large as 2 mm. in diameter; 100% of the product passes through a 10 mesh sieve in which the openings are 2 mm. square. Of this same product 85% to 90% passes a 20 mesh sieve (sieve openings 1 mm. square) while only 15% to 20% of the product passes a 40 mesh sieve (sieve openings 0.5 mm. square). Only about 5% to 8% of the product passes a 60 mesh sieve (sieve openings 0.3 mm. square), and only about 1 to 3% of the product passes a 100 mesh sieve (sieve openings 0.15 mm. square). The fact that no substantial part of the product is of sufficiently small particle size to pass a 100 mesh sieve shows that the product is practically entirely free of objectionable fine material or dust.” It is but fair at this point to set forth appellee’s defenses and its position in general.
It disputes and challenges many facts asserted by appellants in their historical statement; denies that it followed the teachings of Lamont; asserts itself to he the pioneer and always a leader in the art; insists that Lamont was but a novice who played with soap making for a few days and never learned more about the science and art of laundry soap making than a sciolist. We are required to pass on fact issues and scientific disputes involving matters wherein the parties are hopelessly in disagreement. Appellee also denies that it followed Lamont hut it claims its product and process are its own and the result of changes following experiment and that its soap and the process by which it is made is covered by its own patents Nos. 1,779,516 and 1,779,-517, dated Oct. 28, 1930.
The District Court found for appellee and made findings which adopt the contentions of appellee, on both validity and non-infringement. They are complete. Our failure to accept certain conclusions therein appearing is due to the fact that the evidence (physical exhibits) upon which they are based is all before us.
Below is set forth the substance of such findings, slightly abbreviated. The findings although somewhat long are helpful in stating and narrowing the issues.
The Issues. The issues in controversy-are more numerous than in the usual patent suit. The appellee asserts the patent is invalid for want of invention, and the determination of the force and validity of this contention necessitates a separate consideration of the product and the process claims. Appellee also challenges invention on the ground that Lamont was not the first inventor; in fact he was not the first or even a subsequent inventor. On this issue, purely one of fact, there is sharp controversy and each side is supported by persuasive argument. No finding of fact on this issue was made by the District Court. On the issue of infringement appellee contends that its soap does not respond to the product claims of the patent. It asserts that the soap particles are radically different in shape and uniformity as well as in other respects. It also insists (a) that its method of making soap differs from the steps described in the process claims; and (b) the methods followed in making its soap were but improvements of the process and steps by it followed in making its laundry soap for years prior to Lamont’s entry into the industry.
The logical disposition of the determinative questions calls first for a consideration and disposition of appellee’s challenge of Lamont’s inventorship. The precise question which is here raised may be stated thus: Was it not Holliday rather than Lamont who made the discovery, etc. set forth in the Lamont patent?
Both these gentlemen, Holliday and Lamont, were employed by the same company, the Industrial Waste Product Corporation (otherwise known as Industrial Spray Drying Co.), which was engaged in rendering laboratory services to industries of various kinds. Among its employees were three men of more than ordinary technical knowledge. They were Paul D. Zinzinia, Robert L. Holliday, and Dallas R. Lamont. Holliday had chemistry and engineering' training. Lamont had engineering training and acted as patent solicitor, being licensed to practice in the United States Patent Office. Both gentlemen were under agreement to transfer their discoveries and inventions and patent applications to their employer.
Undoubtedly Holliday was the first to make experiments with soap. Industrial Waste Products Corporation was embarrassed financially and most anxious to hit upon a product and to make a discovery which would enlarge its activities and balance its budget. Industrial Waste Products Corporation had in other fields engaged in what is known as spray drying.
Securing a kettle of soap from the manufacturer, Holliday began his experiments, working with kettle soap which in the raw material form was 30% water. Holliday applied heat before spraying the product..The results of his various experiments were written up in the form-of a report. Qther experiments were undertaken and other steps followed and additional reports were recorded. As a result of Holliday’s experimental work it was decided by him or his employer that he should apply for a patent. Lamont acted as his solicitor. Patent No. 1,621,506 covering “The manufacture of a finely divided dry soap product” was issued upon Holliday’s application which bore date of April 19, 1926. It was issued March 22, 1927. It is apparent that Mr. Holliday subsequently believed that he had secured too broad a patent and he filed a disclaimer. Thereafter Holliday left the employ and Lamont continued to make experiments in the soap field. As a result of what he learned from Holliday or from his own experiments, or both, the application for the patent in suit was by him filed, and very shortly thereafter the patent here in question was issued and by him assigned to his employer. Neither Holliday nor Lamont is financially interested in the outcome of this suit.
The controversy between Lamont and Holliday is sharp and unyielding. The burden of proof looms large as the determining factor of this issue. This burden rests upon Holliday. The presumptions favor Lamont.
Holliday made a written statement of his discoveries in 1927. He at that time applied for a patent and, under oath, he set forth his discoveries. Tested by the action of other inventors acting under similar circumstances and seeking patents to protect their discoveries, it is fair to assume that the full strength of the discovery would be set forth by the applicant. Why not? What he did not claim, he waived — he lost. If he claimed more than what he could prove himself to be the first to have discovered, the Patent Office would reject the excess as non-patentahle. Experience has demonstrated that the usual discoverer asserts more rather than less than he is entitled to. This is partly due to the fact that he does not know what others have invented or discovered.
In the instant case therefore, we must assume that Holliday set forth all his discoveries when he applied for his patent. Most significant therefore is the absence of a disclosure of the discovery which Lamont later asserted to be his.
However, this is not all. After the patent was issued to Holliday and he had read it and meditated over it, he concluded there was a mistake in the statement of his discoveries. He sought to correct the mistake appearing in specifications and claims. Here again Holliday had the opportunity to make claim to the discovery covered by Lamont’s patent, if omission existed in his original claims and specifications. Instead we find that Holliday corrects the original application by stating that he had been granted too broad a patent. In other words, his discovery had been too broadly stated, and he therefore sought to limit and restrict the patent previously issued to him by filing a disclaimer.
In the face of such a record it is hard to find that Holliday erred when he sought to narrow the statement of his discovery when he might have broadened it so as to include as his, something he did not suggest when he filed his original application, nor claim when he filed his corrected and amended application.
On the other hand, there was persuasive evidence produced at the trial which supported appellee’s argument. It seems that Holliday wrote a report of each of his experiments, when working for Industrial Spray Dryer Company. Likewise, the product which resulted from his experiments was placed in a tin can and marked by the report number. Sometime after the patent was issued and after the Industrial Spray Dryer Company had transferred the patent to Colgate-Palmolive, a receiver was appointed for the former company. Its assets were sold. Various cans containing the products which resulted from numerous experiments were considered valueless. Some of them had been transferred to a warehouse where they were left neglected for many years.
At the time of the trial one of these cans bearing the Idolliday experiment number was produced in court to prove that the soap therein found responded fully to the claims of the Lamont patent. In other words, appellee offered the product found in this can as soap such as is described in Lamont’s patent. It was offered as the product of the Holliday test.
It would serve no useful purpose to set forth in detail all the evidence in support of the positions taken by the contestants nor to elaborate the reasons for the conclusion which we have reached. It is apparent that the dispute is not one which can be determined with that absolute and mathematical certainty which marks the disposition of some fact issues. We confess the arguments on both sides are rather persuasive.
Our conclusion is in favor of Lamont. We find him to be the original inventor of the soap product and processes by him described in the patent in suit.
In view of this finding it will not be necessary to dispose of a legal question which is the subject of considerable judicial difference of opinion. We refer to the issuance of a patent to an employee of a company, entitled (by agreement) to the inventions and discoveries of its employees, where two employees work in the samé laboratory on the same subject matter and the employer in good faith selects one employee to file the patent application and the infringer asserts that the discovery was made by the other employee, whose discovery also belongs to the employer.
Respecting this question this court sometime ago said:
“If a corporation (incapable of being an applicant for a patent) should employ a score of experts in its laboratories to improve the processes and the products of the corporation, it should be of no concern even to the government * * * to prosecute an inquiry and-make a specific finding on the question whether the invention was single or joint and just what part each expert took in perfecting the improvements ; and surely a stranger, who is taking advantage of the disclosures in the patent, ought not to escape on the contention that the government made a proper grant but erroneously or wrongfully recognized the wrong person as applicant.” Bestwall Mfg. Co. v. United States Gypsum Co. (C.C.A.) 290 F. 798, 799. In conflict with this statement of the law see, United Chromium, Inc. v. General Motors Corporation et al. (C.C.A.) 85 F.(2d) 577.
As bearing upon the effect of the employee’s (who the infringer asserts made the discovery) failure to file the application, see, Mason v. Hepburn, 13 App.D.C. 86. See, also, Brydle v. Honigbaum (Cust. & Pat.App.) 54 F.(2d) 147, and cases there cited. For an interesting discussion of this question see Vol. 18, Journal of Patent Office Soc’y., pages 257, 339.
If an employer who owns the inventions of his employees and is entitled to the patents issued thereon may nevertheless have his patent invalidated at the instance of an infringer when he in good faith names one of two employees as the inventor and the other employee takes no steps to assert his patent rights as first discoverer, then legislation is needed to avoid such possibilities.
We appreciate that the legal question arising out of the ownership of inventions of two employees, who have agreed with the employer that the latter is entitled to their discoveries, is entirely separate from the fact issue which arises out of the controversy over who was the first inventor, Holliday or Lamont. This issue of
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Alexander McDONALD, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellee, and Bethlehem Steel Company, Impleaded Respondent-Appellee.
No. 14086.
United States Court of Appeals Third Circuit.
Argued Feb. 5, 1963.
Decided Aug. 1, 1963.
Seymour Margulies, Jersey City, N. J. (Herbert Winokur, Levy, Lemken & Margulies, Jersey City, N. J., on the brief), for libelant-appellant.
M. E. DeOrehis, New York City (Connell & Corridon, Jersey City, N. J., Haight, Gardner, Poor & Havens, Stephen K. Carr, New York City, on the brief), for respondent-appellee.
John F. Lynch, Jersey City, N. J. (O’Mara, Schumann, Davis & Lynch, James Dorment, Jr., Jersey City, N. J., on the brief), for impleaded respondent-appellee, Bethlehem Steel Co.
Before KALODNER, STALEY and SMITH, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
This suit in admiralty for personal injuries was brought against the United States of America under the Public-Vessels Act, 46 U.S.C.A. §§ 781-790, and against the American Export Lines under 28 U.S.C.A. § 1333(1). The alleged grounds of liability were breach of warranty of seaworthiness, and negligence. The suit against Export Lines was dismissed before answer filed, on consent of the libelant. The remaining respondent impleaded the Bethlehem Steel Company, the libelant’s employer. The present appeal is from a final decree dismissing the. libel and the impleading petition.
The libelant, an employee of Bethlehem Steel, was injured on April 1, 1959, while, employed as a painter on the S.S. Exochorda. This vessel was formerly owned by Export Lines and had been out of service for approximately one-year. It was acquired by the United States on March 16, 1959, under a contract, pursuant to the terms of which Export Lines, as General Agent, was required to have the vessel completely overhauled, put in a state of repair, and deactivated, preparatory to its being-placed in the reserve fleet, commonly known as the “moth ball” fleet. This, extensive work was to be done in accordance with NSA Order No. 64 (OPR-4Revised) and specifications prepared by-Export Lines. The contract for the work, was awarded to Bethlehem Steel,
The vessel was towed to the shipyard’ of Bethlehem Steel without steam or-power, and without a crew. It was delivered at the shipyard on March 16, and' on the following day was placed in dry-dock, where it remained until March 20, when it was refloated and moored at. pier side, where it remained until shortly - after noon on April 1, the date of the-accident. The work on the vessel was.. performed during the period from March. 17 until April 1, inclusive, during which time the vessel was in the exclusive;possession and control of Bethlehem Steel.
While the work was in progress there were several crew members, employed by Export Lines, on board from day to day, but their only responsibility was to inspect the work and to see that it was performed in accordance with the specifications; they exercised no control over the work or the manner of its performance. Export Lines also maintained an hourly security watch to protect the gear and equipment of the vessel against pilferage.
The accident occurred approximately four to five hours before the S.S. Exochorda was to be redelivered to Export Lines. The necessary repairs were near completion and the vessel had been completely deactivated. The trial judge found: “ * * * the vessel’s stern tube was disconnected and filled with preservative; her tail shaft was secured to prevent the turning of the propeller; her sea chests and all underwater overboard discharge lines were permanently blocked off; one shot of chain was disconnected from both the port and starboard anchor chains; the shaft alley drain well was cleaned out; the ship’s gangways were stowed in a lower hold; life boats were removed and stowed in a lower hold; the radar scanner was dismantled, and all storage lockers were permanently sealed off.” These findings are amply supported by the evidence.
It was on the basis of the facts herein-above outlined that the trial judge con•cluded that the S.S. Exochorda had been deactivated and withdrawn from navigation and that under the circumstances there was no implied warranty of seaworthiness. It is argued on behalf of the libelant that this conclusion was •erroneous. The argument is without .merit.
Claim Based on Warranty op Seaworthiness
We recognize at the outset, as we must, that under the implied warranty of seaworthiness the shipowner is under a duty to maintain the vessel, its gear and appurtenances, reasonably safe and suitable for the purposes intended. This duty, which is absolute and nondelegable, is owed not only to the members of the crew but also to the shore based employees of an independent contractor engaged aboard ship in work customarily performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). However, it has been authoritatively settled, if it was ever in doubt, that the implied warranty may not be invoked as a basis of liability where the vessel has been withdrawn from navigation and is undergoing extensive renovation and repairs. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Latus v. United States, 277 F.2d 264 (2d Cir., 1960), cert. den. 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960). It has been held that in these circumstances there is no warranty of seaworthiness. Ibid.
It is argued on behalf of the libelant that the cited cases are distinguishable because of their “converse fact situation [s].” The vessels involved in each of the cited cases had been withdrawn from the “moth ball” fleet and, at the time of the accidents in which the workmen were injured, were undergoing extensive repairs preparatory to their reactivation and return to maritime service. We fail to perceive any validity in this attempted distinction. The rule of the WEST case was applied in Noel v. Isbrandtsen Company, 287 F.2d 783 (4th Cir., 1961), cert. den. 366 U.S. 975, 81 S.Ct. 1944, 6 L.Ed.2d 1264 (1961), a case in which a workman sustained injury while the vessel was undergoing repairs and deactivation, as in the present case. The libelant’s argument, and the reasons advanced in support of it, are clearly without merit.
We should emphasize that the decision of the Supreme Court in the WEST case was predicated not only on the fact that the vessel had been withdrawn from maritime service but also on the further fact that it was “undergoing major repairs and complete renovation” at the time the workman sustained injury. Therein the Court stated, 361 U.S. at page 122, 80 S.Ct. at page 192, 4 L.Ed.2d 161: “This undertaking was not ‘ship’s work’ but a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for the sole purpose of making her seaworthy. It would be an unfair contradiction to say that the owner held the vessel out as seaworthy in such a case.” The rule of the case must be applied where, as here, the vessel has been withdrawn from maritime service and is undergoing extensive overhaul and repair preparatory to its deactivation. Noel v. Isbrandtsen Company, supra.
The shipowner’s liability under the warranty of seaworthiness is dependent upon not only the specific task being performed by the workman at the time of injury but also the nature and scope of the work in which he and other shore based employee’s are engaged. West v. United States, supra; United N. Y. & N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); Berryhill v. Pacific Far East Line, 238 F.2d 385 (9th Cir., 1956), cert. den. 354 U.S. 938, 77 S.Ct. 1400, 1 L.Ed.2d 1537; Raidy v. United States, D.C., 153 F.Supp. 777, affd. 252 F.2d 117 (4th Cir., 1958), cert. den. 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958). See also Latus v. United States, supra. The warranty of seaworthiness does not extend to a shore based employee who, at the time of injury, was engaged with others in the general overhaul and renovation of a vessel temporarily withdrawn from maritime service. Such work is customarily performed in a shipyard equipped for the purpose, and is not work traditionally performed by seamen. Ibid.
Claim Based on Negligence
The libelant charges that the respondent was negligent in that it failed to exercise reasonable care to furnish him with a safe place to work. The trial judge concluded, on findings of fact supported by substantial evidence, that the respondent owed no duty to the libelant. This conclusion is challenged as erroneous.
The accident occurred on the morning of April 1, shortly after 7:30 A.M., while the S.S. Exochorda was still in the possession and control of Bethlehem Steel. The libelant and another workman, accompanied by their foreman, descended from the main deck to the ’tween deck, where they made an inspection of painting work which had been completed in the laundry on the previous day. Then, intending to return to the main deck by way of a ladder located in a cargo hold, they walked along a lighted passageway into the hold, which was in semidarkness, the portable lights having been removed the previous day. As the libelant proceeded across a hatch cover, he fell through an opening which had been created by the removal of two boards. There was some conflict in the testimony as to who had removed the boards. However, the trial judge found that the boards had been removed during the night prior to the accident by employees of Bethlehem Steel on the orders of a job supervisor.
The shipowner in possession and control owes a duty of reasonable care to workmen who come aboard the vessel to make repairs. The duty is to exercise reasonable care to furnish the workmen with a safe place to work. Mesle v. Kea Steamship Corporation, 260 F.2d 747 (3rd Cir., 1958), cert. den. 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959); Brabazon v. Belships Co., 202 F.2d 904 (3rd Cir., 1953). However, the test of the shipowner’s responsibility is possession and control. Where, as here, possession and control of the vessel are relinquished to an independent contractor, the shipowner owes no duty to the contractor’s employees. West v. United States, and Latus v. United States, supra. It was said by the Supreme Court in the WEST case, 361 U.S. at page 123, 80 S.Ct. at page 193, 4 L.Ed.2d 161: “It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe.”
The libelant argues that possession and control of the S.S. Exochorda was retained by the respondent. The trial court found otherwise, and this finding, supported as it was by substantial evidence, cannot be held “clearly erroneous” under the rule of McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). The libelant’s argument rests on a rather tenuous factual basis which does not warrant discussion.
Exclusion of Deposition
At the conclusion of the respondent’s case the libelant offered in evidence, by way of rebuttal, portions of a deposition. This deposition was that of a mate employed aboard the S.S. Exochorda while the work of renovation and deactivation was in progress. The offer of proof was rejected, and thereupon the libelant withdrew the deposition and did not make it a part of the record. It has been established that under these circumstances we are not required to consider the assignment of error predicated on the exclusion of the deposition. Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 87 L.Ed. 645 (1943). We have nevertheless considered the question raised on the merits.
The mate was in attendance throughout the trial but was not called as a witness by either party. However, the libelant argues that the deposition was that of a “managing agent,” and was therefore admissible under Rule 30A(d) (2) of the Rules of Practice in Admiralty and Maritime Cases, as amended, 28 U.S.C.A. We do not agree. The mate was not per se a “managing agent” within the meaning of the rule. The admission of his deposition would have been error. Naylor v. Isthmian S.S. Co., 187 F.2d 538, 540 (2d Cir., 1951); see also Santiago v. American Export Lines, Inc., 30 F.R.D. 372 (S.D.N.Y.1962). It appears from the undisputed testimony in the record that the position of the mate was that of an inferior officer who had no supervisory authority and acted under the supervision and direction of his superior, a port engineer in the employ of Export Lines. It is clear that under these circumstances it cannot be held that the mate was a “managing agent.” Ibid.
The judgment of the District Court will be affirmed.
. 32(a) C.F.R. 317, et seq. (1958 Revision).
. Ibid.
. Work in the hold had been completed on. March 31, and after its completion the portable lights were removed and the main hatch was covered by the employees of Bethlehem Steel.
. The brief of the appellant incorrectly cites as authority the Federal Rules of Civil Procedure.
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_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
BANCO POPULAR de PUERTO RICO, Defendant, Appellant, v. Juan Elias DELIZ, a/k/a John Donald Deliz, Plaintiff, Appellee. Jose M. MEDINA et al., Defendants, Appellants, v. Juan Elias DELIZ, a/k/a John Donald Deliz, Plaintiff, Appellee.
Nos. 7030, 7031.
United States Court of Appeals First Circuit.
March 13, 1969.
Vicente Zayas Puig, with whom Alberto Pico, Francisco Ponsa Feliu and Baragano, Trias, Saldana & Francis, San Juan, P. R., were on brief, for appellant in No. 7030.
Alberto Pico, with whom Vicente Zayas Puig, Francisco Ponsa Feliu and Baragano, Trias, Saldana & Francis, San Juan, P. R., were on brief, for appellants in No. 7031.
Stanley L. Feldstein, with whom Nachman, Feldstein, Laffitte & Smith, San Juan, P. R., was on brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
, These are joint appeals by defendants in an action brought in the district court for the District of Puerto Rico by Juan Elias Deliz, the son and sole heir of Juan Elias Deliz Gonzales, hereinafter the decedent, against decedent’s sister and her husband, Jose M. Medina, citizens of Puerto Rico, and Banco Popular de Puerto Rico. Plaintiff is a citizen of Texas, and the jurisdictional requirements were met. Plaintiff claims that his aunt, with the cooperation of Ihe bank, converted decedent’s two savings accounts, in the total amount of $17,359, while he was mortally ill in the hospital. The jury found for the plaintiff in the amount of $3,542. The court set the verdict aside and ordered judgment for the plaintiff for $11,829, or, in the alternative, ordered a new trial on damages. Defendants appeal.
The evidence might be interesting in full detail were we writing a novel, but as a court matter much may be omitted. Using withdrawal orders decedent had signed, the defendant sister transferred his funds in New York into an account standing in her name in the Banco Popular. She allegedly then expended $5,530 to decedent’s purposes, including $2,250 given to the plaintiff, and later allegedly gave $12,000 in $100 bills to decedent in the hospital, shortly before he and a lady who had long been his mistress, one Hortensia de Blanck, returned to New York. The sister, accordingly, claimed she had accounted in full.
The testimony as to the $5,530 was not disputed. With two alternatives open to it, to find for the plaintiff for $11,829, being $17,359 less $5,530, or, on the testimony that the sister had returned the entire balance, to find for the defendants, the jury made an intermediate finding which could not be justified on the evidence. Concluding this was an impermissible compromise, the court set the verdict aside. Its further orders were based upon its determination that the $12,000 payment testimony was unbelievably “fantastic” as a whole, or, alternatively, did not amount to a proper delivery. In addition, the court awarded counsel fees for obstinacy.
We need not consider to what extent, if any, a court in a case tried to a jury may order judgment in disregard of the specific factual testimony of three alleged eye-witnesses by finding it to be “fantastic.” We are not persuaded in this case that it was fantastic, nor that, if true, it could not constitute delivery. As to the latter, no testimony reflected upon decedent’s mental abilities. If he wanted to take back $12,000 in cash, that was his affair. With respect to the supposed fantasy of giving $12,000 in caish to a dying man (who was well enough to travel from Puerto Rico to New York, and who lived three more weeks), decedent knew he was dying and that he was going back to New York with a lady who had long been his mistress. He might well want the money for his immediate bills, with the balance for her. The fact that Hortensia testified that “of course” she knew nothing of the money did not mean that the sister was the storyteller. With a litigious son around, Hortensia could be thought to have a strong motive for concealment. Defendants presented enough evidence to entitle them to a jury’s resolution of their claims. Roche v. New Hampshire Nat. Bank, 1. Cir., 1951, 192 F.2d 203. See Rainey v. Gay’s Express, Inc., 1 Cir., 1960, 275 F.2d 450. Ordering judgment for the plaintiff for $11,832 was error.
The ordering of a new trial, on the other hand, in the light of the inexplicable amount of the verdict, was not an abuse of the court’s discretion.. National Fire Ins. Co. v. Great Lakes Warehouse Corp., 7 Cir., 1958, 261 F.2d 35; Schuerholz v. Roach, 4 Cir., 1932, 58 F.2d 32, cert. denied 287 U.S. 623, 53 S.Ct. 78, 77 L.Ed. 541. Whether the new trial be on damages only, or on liability, is one and the same, so far as the defendant sister is concerned, because she admitted the original obligation and claimed payment. However, with respect to the bank, if the deposit was in. the sister’s name with the consent of the decedent, the bank would not be liable even though she failed to account. The court’s exclusion of decedent’s instructions was error. See, e. g., Ward v. United States, 5 Cir., 1962, 296 F.2d 898, 903; Young v. State Farm Mut. Auto. Ins. Co., 4 Cir., 1957, 244 F.2d 333, 337; 6 J. Wigmore, Evidence § 1770, at 185 (3d ed. Í940). It is true that the bank made no offer of proof. We overlook this because the proffered witness was not the bank’s witness. The bank is entitled to a new trial on liability.
While the matter is now mooted, we are sufficiently disturbed about counsel fees for obstinacy (32 L.P.R.A. App. II R. 44.4(d)) to comment thereon. There is a tendency on the part of successful counsel to feel that they prevailed because of their astuteness, and at the same time to consider that opposing counsel were obstreperous and “obstinate” in having opposed them. This latter thought may predominate when the question of counsel fees for obstinacy arises. Our own view is that usually parties and counsel on both sides may be considered less than fully cooperative, and that it is the exception when counsel fees should be awarded. -The present case is an example. Plaintiff’s counsel informed the court- — a visiting court not acquainted with the Puerto Rico practice —that plaintiff should recover “20 to 30 percent in the matter litigated.” Counsel neglected to point out that in the complaint plaintiff sought $17,362, without credit for $2,250 for which he had given a receipt. During the trial the defendant sister also sought credit for an additional $3,280 for which plaintiff makes no criticism. In awarding counsel fees the court stated it felt “25 per cent of the total sum” was fair. But by this it meant 25 percent of $17,359, for it awarded $4,339.
When defendants complained in this court that $4,339 was 37 percent of the recovery, plaintiff expostulated, “[Defendants’] allegation is supported by a mathematical process of reducing the award to various percentages (an operation never undertaken by the court below) of the judgment and eventually concluding that the award represents 37 % of the total amount granted in damages.” These remarks are apparently meant to be critical of the defendants. Plaintiff forgets that he was the one who started talking in terms of percentages — and over a claim exaggerated by an admitted $2,250 plus, as he now emphasizes in another connection, an “uncontradicted” $3,280. This meant that plaintiff claimed 31 percent more than he was entitled to. Now plaintiff, having asked for and received a percentage of an admittedly excessive claim, complains when defendants seek to examine it realistically.
When the issue is damages and a plaintiff wants to claim obstinacy, it behooves him not to ask too much. Plaintiff’s apparent thought that the district court’s discretion is virtually unlimited reads too much into Pan American World Airways, Inc. v. Ramos, 1 Cir., 1966, 357 F.2d 341.
The error was more substantial than this. One of the defendants is a bank, a possible wrongdoer, but with no personal interest. Funds concededly belonging to the decedent were allowed by the bank to be deposited in the name of the sister, and by her withdrawn. Even if this was contrary to the decedent’s original instructions to his sister, which we cannot know, at least to the extent that the sister thereafter properly applied the funds the bank was not liable. The sister claimed that she properly applied them all. The plaintiff, admittedly incorrectly, filed a complaint in which he alleged she properly applied none. It could not be obstinate for the bank to await a settlement of the differences between the main parties, a dispute to which the bank could contribute no information.
The order setting aside the verdict of the jury is affirmed. The other actions of the district court are vacated and the cause is remanded for a new trial.
. The sister was not permitted to testify what decedent’s instructions had been. How the district court, which excluded this evidence, considered the instructions to be “hearsay” we cannot imagine.
. The defendants claim that the jury could have reached its result by accepting some of the $5,530 figure and rejecting the rest. The various items making up the $5,530 were set forth in an exhibit. Given the plaintiff’s acknowledged receipt of $2,250, no selection could be made which would justify the jury’s figure.
. In all fairness to plaintiff’s counsel we do not suggest that his approach is unique. We are spending the time on this matter for the very reason that we think what occurred in this case was not unique, and we feel it should be corrected.
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_r_nonp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HIGHWAY TRUCKDRIVERS AND HELPERS, LOCAL NO. 107, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT, Respondent.
No. 13607.
United States Court of Appeals Third Circuit.
Argued Oct. 31, 1961.
Decided Feb. 23, 1962.
As Amended April 10, 1962.
Warren M. Davison, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, on the brief), for petitioner.
Richard H. Markowitz, Philadelphia, Pa. (Paula R. Markowitz, Wilderman, Markowitz & Kirschner, Philadelphia, Pa., on the brief), for respondent.
Before McLAUGHLIN, STALEY and FORMAN, Circuit Judges.
STALEY, Circuit Judge.
This is a secondary boycott case in which the National Labor Relations Board (“Board”) seeks enforcement of an order issued against Highway Truckdrivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (“union”). The Board found that the union, in course of a strike, violated various provisions of the Labor Management Relations Act, 1947 (“Act”), 29 U.S.C.A. § 141 et seq., namely, § 8(b) (1) (A), by threatening and coercing certain employees of secondary employers, and by obstructing entrance to and exit from the Riss & Company, Inc. (“Riss”) terminal, and § 8(b) (4) (i) and (ii) (B) by inducing and encouraging employees of neutral employers to refuse to handle Riss freight, and restraining and coercing persons engaged in commerce with an object of forcing neutral employers to stop doing business with Riss.
Riss employed a number of union members as drivers to perform local pickup and delivery services in the Philadelphia area. This operation was conducted from a Philadelphia terminal owned by persons who also held all the stock in Riss. The terminal was shared with four other freight carriers including Cartage and Terminal Corporation (“Cartage”), and Salem Express (“Salem”). On December 23, 1959, Riss notified the drivers that beginning with January 1, 1960, Cartage would perform all of Riss’ local pickup and delivery work, and on December 31, 1959, each driver was sent a termination notice.
To support the § 8(b) (4) (i) and (ii) (B) findings, the Board relied first on what it called the Royce incident that took place on December 29, 1959. The record shows that twice on December 29, 1959, several men unhooked a Riss trailer that was attached to a tractor driven by George Royce, an employee of Cumberland Transport. The first unhooking took place at the Riss terminal and the second at the Pennsylvania Railroad piggyback yard in Philadelphia. The Board also relies on events that occurred at the North Penn Transfer Company terminal where on January 20, 1960, a shipment was received from Riss on interline. Thereafter, North Penn employees, who were also members of the union, refused to handle Riss freight. Lastly, the Board points to picketing of the Riss terminal beginning on December 29, 1959.
The union does not challenge the Board’s conclusion that a § 8(b) (1) (A) unfair labor practice was committed. The attack is concentrated on the Board’s finding that the union violated § 8(b) (4) (i) and (ii) (B), which provide that it shall be an unfair labor practice for a union or its agents:
“(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * transport, or otherwise handle or work on any goods * * * or to perform any services; or
“(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
******
“(B) forcing or requiring any person to cease * * * handling, transporting, or otherwise dealing in the products of any other producer, * * * or to cease doing business with any other person * * *»
More particularly, the union contends that there is no evidence in the record showing that the men who accosted Royce were acting on behalf of the union, and that the union cannot, therefore, be charged with responsibility for the incident. As to the North Penn occurrence, the union says that a refusal to handle goods is simply a form of economic coercion not involving the use of force or violence which must take place before a § 8(b) (4) (ii) violation can be found. As to the picketing, the union contends that in light of the fact that picketing has at all times been limited' to the Riss terminal and directed against Riss only, the picketing is primary in nature and protected under the Moore Dry Dock doctrine previously enunciated by the Board.
Turning to the union’s responsibility for the Royce incident, Royce testified that as he entered the Riss terminal a number of men whom he recognized as Riss drivers hailed him and asked' what he was doing with a Riss trailer. After Royce said that he was delivering an empty Riss trailer to New Jersey, these same men informed him that they were on strike against Riss and ordered him to drop the trailer. The men proceeded to unhook the trailer while Royce was at a telephone calling the Salem dispatcher for further instructions. After-giving a false destination, Royce drove-back to the Pennsylvania Railroad yards where, while hooking up a Riss trailer,, he was again approached by union pickets who unhitched his trailer and ordered him to leave and not to pick up anything with a Riss name on it. At the time these events occurred, Riss had already notified its drivers that Cartage would perform local pickup and delivery services as of January 1, 1960. The Board had before it evidence that on the day-following the Royce incident, pickets representing the union appeared at the terminal and obstructed the ingress and', egress of Salem trailers which were carrying Riss freight on interline. On that same day, pickets numbering from ten to twenty also blocked the egress and ingress of other trucks using the principal gate at the Hiss terminal. These circumstantial facts, when coupled with Royce’s recognition of some of the men as being Riss employees, leads irresistibly to the conclusion that the union, through its agents, was responsible for the Royee incident.
From an examination of the pertinent legislative history, we are convinced that § 8(b) (4) (ii) (B) prohibits economic sanctions against a secondary employer in the form of a refusal by a union which represents employees of both the primary and secondary employer to handle a primary employer’s goods.
Section 8(b) (4) (ii) (B) was enacted as an amendment to the Act when the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C.A. § 401 et seq., was passed. When the LMRDA left committee and was introduced in the Senate, it contained no provisions dealing with secondary boycotts. Minority members of the committee criticized this fact and recommended that § 8(b) (4) be amended to make it applicable to conduct that would “threaten, coerce or restrain any person engaged in commerce * * That is how the section now reads. Amendments to the Act were then offered on the floor of the Senate by Senator McClellan. Debate following introduction of the amendment indicates that its secondary boycott provisions were not restricted to the use of force or violence as a means of bringing pressure against the secondary employer, but included economic sanctions as well. Senator McClellan, who introduced the amendment, referred to it in debate, saying:
“Fourth, the amendment covers the withholding of prospective employees from a secondary employer. I refer to a case in which I may be handling the products of a given company or manufacturer, and I have an arrangement with a union whereby it furnishes employees to me when I call upon the union to furnish them. I refer to a case where I may be under a contract and under an obligation to use the facilities of a hiring hall to get my employees from the hiring hall. The union would say to me, ‘We will not furnish you any more men, so long as you handle the products of that company.’ That is another form of secondary boycott which would be prohibited.” (Emphasis supplied.)
Senator Curtis, a cosponsor of the amendment, further particularized its scope when during debate he said:
“ * * * If the union, to bring pressure upon the reluctant employer, calls out on strike the employees of a different employer in order to force that employer to stop doing business with the first one, that is presently unlawful under the secondary boycott provisions of existing law. But suppose the union plays it smart. Instead of calling the strike just described, it simply goes to the second employer and says, ‘Look here; you do not want any trouble with us; stop doing business with the first employer. He is giving us trouble by not signing up with us.’ There is nothing in the present law to bar such direct pressure upon the second employer. * *
“The amendment cures the above defect in existing law by making it just as unlawful to coerce second employers directly as indirectly through their employees.”
The amendment was attacked during debate in the Senate largely because it was not limited to the use of force or violence. The McClellan amendment was defeated.
The bill passed by the House of Representatives was introduced by Representatives Landrum and Griffin as a substitute for the committee bill. The substitute reinstated the essence of the secondary boycott provisions of the McClellan amendment. In analyzing that provision, Representative Griffin said:
“The courts also have held that, while a union may not induce employees of a secondary employer to strike for one of the forbidden objects, they may threaten "the secondary employer, himself, with a strike or other economic retaliation in order to force him to cease doing business with a primary employer with whom the union has a dispute. This bill makes such coercion unlawful by the insertion of a clause 4(ii) forbidding threats or coercion against any person engaged in commerce or an industry affecting commerce.”
Later, Representative Griffin again referred to the secondary boycott provision during debate and gave an example of what it was meant to cover. He said:
“Fourth. If, instead of going to B’s. employees the union official goes directly to B and threatens him with labor trouble or other consequences, unless he stops dealing with Company A — the effect of the act can be technically avoided. Our substitute would close this loophole — the committee bill would not.”
That provision was enacted by the House and passed by the Senate after the conference committee report was accepted.
The evidence here established the type of economic coercion that the Act proscribed. The record shows that on January 20, 1960, a shipment from Riss arrived at the North Penn terminal. The terminal manager himself was forced to handle the shipment after the union steward indicated that employees would not handle Riss goods unless clearance was first obtained from the union. There is substantial evidence to support the Board’s conclusion that on the following day the union steward called and spoke to one of the union’s business agents concerning the status of Riss goods. Unchallenged evidence shows, that immediately thereafter the union steward informed the terminal manager that the employees would no longer handle Riss goods because of the union’s dispute with Riss. When a shipment arrived at the North Penn terminal on January 25, the employees refused to handle the goods.
The Riss terminal constituted a common situs, i. e., a common place of operation utilized by two or more employers. A common situs situation frequently requires the courts to determine whether the picketing is primary or secondary in nature. The fine and elusive line that separates primary from secondary picketing was made bolder and darker by the Board’s decision in Sailors’ Union of the Pacific, 92 N.L.R.B. 547 (1950). The Board there set out four standards, usually referred to as the Moore Dry Dock doctrine, for determining whether such picketing is presumptively valid primary activity: (1) that the picketing be limited to times when the situs of the dispute was located on secondary premises; (2) that the primary employer be engaged in his normal business at the situs; (3) that the picketing take place reasonably close to the situs; and (4) that the picketing clearly demonstrate that the dispute was only with the primary employer. Compliance with these standards, however, at most gives the picketing only presumptive validity. Local 761, International Union of Electrical Radio & Machine Workers, A.F.L.-C.I.O. v. N. L. R. B., 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Even under that doctrine, the union must conduct its picketing so as to minimize the impact thereof on the secondary employer, Retail Fruit & Vegetable Clerks’ Union, 116 N.L.R.B. 856 (1956), and where, as here, the union deliberately enmeshes secondary employers and employees in the dispute, the doctrine has no application. N. L. R. B. v. International Hod Carriers Union, 285 F.2d 397 (C.A.8, 1960), cert. denied, International Hod Carriers Bldg. & Common Laborers’ Union of America, Local 1140, A.F.L.-C.I.O. v. N. L. R. B., 366 U.S. 903, 81 S.Ct. 1047, 6 L.Ed.2d 203 (1961); N. L. R. B. v. Local 294, International Brotherhood of Teamsters, 284 F.2d 887 (C.A.2, 1960); Gonzalez Chemical Industries, Inc., 128 N.L.R.B. 1352 (1960), reversed on other grounds, Teamsters, Chauffeurs, Warehousemen, etc. v. N. L. R. B., 110 U.S.App.D.C. 404, 293 F.2d 881 (1961).
Rather than complying with the fourth requirement of the Moore Dry Dock doctrine, the union here, by deliberate acts, made it perfectly clear that the picketing was not limited to the primary employer. On December 30, 1959, the union’s pickets physically obstructed the ingress and egress of Salem trucks at the Riss terminal in those cases where Riss freight was being transported. "Violence erupted a few days later. One of the several acts of violence that took place on January 4,1960, involved a Cartage driver who was stopped by pickets as he was attempting to cross the picket line and told by a union steward carrying a meathook that “I’ll bring this down over your head if you try to move that truck out of this yard. I’ll get you.” The same union steward told a vice president of Cartage that he was the “son-of-a-bitch that started all of this. I’m going to get you, too.” Similar threats were made to another Cartage driver who crossed the picket line on January 7 and 11, 1960.
The union makes a final point concerning the scope of the Board’s order. That order prohibited the union from inducing or encouraging any individual employed by Salem, Cartage, North Penn “or any other person” to engage in a strike in order to force those employers to cease doing business with Riss. The order also prohibits the union from threatening, coercing, or restraining Salem, Cartage, North Penn or “any other person” to force such persons to cease doing business with Riss. The union says that the evidence does not support the inclusion of the particular employei’s in the order, and that use of the phrase “any other person” is prohibited by the Supreme Court’s decision in Communications Workers of America, A.F.L.-C.I.O. v. N. L. R. B., 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960). In regard to the question before us, the Court in N. L. R. B. v. Express Publishing Co., 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930 (1941), said:
“ * * * To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past.”
A broad order is permitted where the evidence shows the existence of a general scheme, pattern or course of conduct contemptuous of the Act. N. L. R. B. v. Local 522, Lumber Drivers, 294 F.2d 811 (C.A.3,1961).
There is a strong factual basis in the record showing that the union has unlawfully interfered with the activity of employers other than Riss. That, coupled with what the Board described as the union’s obvious “proclivity to engage in unlawful secondary activity” when and where such conduct suits its purpose convinces us that the order should be enforced in its entirety.
In attacking the scope of the order, the union relied heavily on N. L. R. B. v. Ochoa Fertilizer Corp., 283 F.2d 26 (C.A.1, 1960). We need only say that after argument, that case was reversed by the Supreme Court on the very point for which it was cited here. 82 S.Ct. 344 (Dec. 18, 1961). Also, Communications Workers of America v. N. L. R. B., 362 U.S. 479, 480, 80 S.Ct. 838, 840, 4 L.Ed.2d 896, is no help for, as the Court pointed out, the union there had not “engaged in violations against the employees of any employer other than Ohio Consolidated * * That, certainly, is not this case.
A decree for enforcement of the order of the Board may be submitted.
. 130 N.L.R.B. No. 91.
. S.Rep. No. 187, 2 U.S.Code Cong. & Adm. News, 86th Cong., 1st Sess.1959, p. 2318.
. Id. at 2318, 2383.
. 105 Cong-Rec., 86th Cong., 1st Sess., 1959, p. 6667.
. Id. at 6670.
. Id. at 6638-6671.
. Id. at 6671.
. Id. at 14347.
. Id. at 14347.
. Id. at 15532.
. Id. at 17919-17920.
. To support this conclusion, the Board cites several recent cases before it involving conduct of a similar nature by the same union. Highway Truck Drivers, Local 107, 115 N.L.R.B. 1184 (1956), and Local 107, Highway Truck Drivers, 40 L.R.R.M. 1270. Subsequent to the order before us, the Board decided Highway Truck Drivers, Local 107, 131 N.L.R.B. No. 117, which also supports its conclusion.
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
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songer_usc2sect
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3664
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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 second 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, Plaintiff, v. Arthur GRUNDHOEFER, Leonard Hausman, et al., Defendants, Richard E. O’Connell, as Trustee in Bankruptcy for Hausman Computer Associates, Inc., an Intervening Party, Plaintiff. Richard E. O’CONNELL, Claimant-Appellant, v. BROOKLYN LEGAL SERVICES CORPORATION, Appellee.
Nos. 742, 743, Dockets 89-1435, 89-1472.
United States Court of Appeals, Second Circuit.
Argued Feb. 14, 1990.
Decided Oct. 3, 1990.
Michael S. Devorkin, New York City (Doar Devorkin & Rieck, New York City, of counsel), for claimant appellant Richard E. O’Connell as trustee in bankruptcy for Hausman Computer Associates, Inc., debt- or.
Elizabeth M. Imholz, Brooklyn, N.Y. (John C. Gray, Jr., Brooklyn Legal Services Corp. B, Brooklyn, N.Y.; Scott Thompson, Stewart Klein, Davis Polk & Wardwell, New York City, of counsel), for appellee, Brooklyn Legal Services Corp. B.
Before CARDAMONE, WINTER and ALTIMARI, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal brings before us restitution orders that direct the principals of Haus-man Computer Associates, Inc. (Hausman School or the School) to pay specified amounts into a fund for the benefit of the School’s former students. The restitution orders were made part of the sentences imposed on the School’s two founders. They and other school employees were convicted of defrauding the government and students, many of whom had paid over to the School their guaranteed student loan checks and were relying on the School to provide the training necessary to find employment to repay their loans. The School’s abrupt closing and bankruptcy in 1987 left these unsuspecting students without recourse. Defaulting on a student loan has, of course, serious and negative consequences to a student’s credit rating and future loan possibilities.
Recognizing these detriments, the New York State Education Department set up its own fund to reimburse students for tuition payments made to unscrupulous trade schools — assisting many students in repaying student loans incurred to pay their tuition bills. See N.Y. Times, July 10, 1990, at B1, col. 5, B4, cols. 3 & 4. In this case, not only were the government and students defrauded, but a number of other creditors filing claims in the corporation’s bankruptcy proceeding also lost money. Appellant, Richard E. O’Connell, trustee in bankruptcy for the Hausman School, as debtor, intervened and unsuccessfully challenged the restitution orders in the district court sentencing proceedings.
The trustee appeals from that part of the final judgment and order of restitution entered August 11, 1989 in the United States District Court for the Southern District of New York (Sweet, J.), directing Arthur J. Grundhoefer to make restitution — in an amount agreed upon by the government and the defendant — to the student victims of the conspiracy. More particularly, the intervening appellant appeals from the denial of restitution to him as trustee for the debtor and the award of restitution to Brooklyn Legal Services, in trust for the student victims. The trustee also appeals from a similar order of restitution entered on September 15, 1989 in the Southern District (Leval, J.) that directed defendant Leonard Hausman to make restitution in the sum of over $1 million to Brooklyn Legal Services acting on behalf of the student claimants of the same Hausman School corporation.
FACTS
This case stems from the criminal conspiracy of defendants Grundhoefer and Hausman, who founded a computer training school incorporated under the name Hausman Computer Associates, Inc. in 1980 and during its existence were its sole shareholders, officers, and directors. The Hausman School sought students who were eligible for federal financial assistance under 20 U.S.C. § 1070 et seq. (1988), in the form of Basic Educational Opportunity Grants, commonly known as “Pell Grants,” and guaranteed student loans. Because the School’s application to the New York State Education Department certified that all its students had previously acquired a high school diploma or its equivalent, the School’s students who had not graduated from high school were ineligible for federal assistance. In 1983 Grundhoefer and Hausman learned that some of the School’s students were not high school graduates. In order to maintain the steady stream of federal money to which they had become accustomed, Grundhoefer and Hausman together with two recruiters they employed — Maria Faughaner and Rita Toro— conspired to make fictitious high school diplomas or equivalency diplomas and records for those students who had not graduated from high school.
From 1984 through 1987 the Hausman School received $25 million in federal grant money and guaranteed student loans, and from these substantial funds it paid Haus-man and Grundhoefer during the two and a half years from 1985 through mid-1987 total salaries of $1,500,000 and $1,462,000 respectively. After the Federal Bureau of Investigation raided the School’s premises in September 1987 and uncovered the falsified diploma scheme, it was closed. Subsequently, Hausman Computer Associates, Inc. filed for bankruptcy under Chapter 7 of the Bankruptcy Code in the Bankruptcy Court for the Southern District of New York (Buschman, B.J.). When appellant O’Connell was appointed trustee his task was to ascertain and recover the School’s assets and provide for their proper distribution among its creditors.
A. Criminal Proceedings
Following the government’s criminal investigation of the School’s activities in 1987 and Hausman’s subsequent arrest, he pled guilty on February 24, 1989 to one count of conspiracy under 18 U.S.C. § 371 (1988), for conspiring to make false claims to the Department of Education and to obtain federal monies by fraud. He also pled guilty to one count of a substantive violation of 18 U.S.C. § 666 (1988) — obtaining federal grants by fraud. On May 31, 1989 Grun-dhoefer pled guilty to the first two counts of a 31-count indictment filed against him and Rita Toro, also under §§ 371 and 666. Toro went to trial and was convicted of participating in the conspiracy and of 29 substantive counts under 18 U.S.C. §§ 287 and 2 for falsifying high school diplomas. Her conviction was affirmed by this Court in an unpublished opinion dated June 11, 1990. Maria Faughaner, the other Haus-man School defendant, pled guilty to one count of conspiracy and one count of making false claims for federal grants.
B. Restitution
Brooklyn Legal Services Corporation B and Bronx Legal Services (collectively Legal Services) jointly wrote Judge Sweet and Judge Leval in 1989 regarding the forthcoming sentencing of Faughaner and Haus-man. Together they represented defrauded students of the Hausman School. Legal Services “urge[d the court] to require restitution and direct that the United States Department of Education set aside in a separate account for the benefit of former students all monies collected in connection with Hausman Computer School defendants.” The letter suggested that such an arrangement would benefit those students enrolled at the school at the time of its closing who would be forced to repay their student loans and would also benefit the government.
On July 18 when Faughaner appeared before Judge Sweet for sentencing, Legal Services spoke in favor of an order requiring the $250,000 that Faughaner had agreed to pay in restitution be placed in a separate fund for the benefit of the student victims. The Assistant United States Attorney (AUSA) consented to this proposal, and Judge Sweet expressed his receptiveness to it as well, though he ultimately declined to sentence Faughaner until after consulting with Judge Leval who was shortly to sentence co-defendant Hausman.
Legal Services followed their appearance with a July 20th letter sent to both Judge Sweet and Judge Leval providing a more detailed explanation of their proposal. The letter stated that “two groups of student victims already have been identified: (1) those students who were enrolled in the school at the time of the closing and who had student loan liability; and (2) students to whom or on whose behalf the school owed but never paid student loan refunds.” Legal Services attached a list — which it had obtained from the New York State Education Department — of the names and social security numbers of the students enrolled at the School at the time of its closing and the students to whom the School owed student loan refunds.
In a July 28, 1989 letter directed to Judges Sweet and Leval the trustee’s attorney asked to be permitted to submit its case for a restitution order in favor of the debtor and that the letter be considered a request to intervene for that purpose. On August 2 Grundhoefer appeared for sentencing before Judge Sweet. The government, Legal Services and the trustee each advocated their respective positions on the proposed restitution order. The AUSA argued in favor of an order requiring that the $740,000 Grundhoefer agreed to pay in restitution be given to the student victims represented by Legal Services and not to the “bankruptcy trustee’s pot to be used for, presumably, the computer school’s electric bills [and] water bills.” The trustee advocated an order requiring restitution to be made in favor of the unsecured creditors — which he asserted were equally victims of the Hausman conspiracy — through a distribution supervised by the bankruptcy court. Legal Services reiterated its position in favor of restitution to the student victims, whose claims under the bankruptcy code it asserted were time-barred.
Judge Sweet entered a judgment that same day sentencing Grundhoefer to a prison term of a year and a day and directing “[c]ounsel for the Government and [Legal Services] to submit to the Court a proposed order providing a plan for disbursing the amount paid in restitution to the student victims of the conspiracy.” At their respective sentencing hearings, Judge Sweet ordered that the restitution paid by co-defendants Faughaner and Toro be added to the restitution fund established as part of Grundhoefer’s sentence.
On September 11 at Hausman’s sentencing before Judge Leval Legal Services asked the court to enter an order similar to that entered by Judge Sweet. Judge Leval agreed. He sentenced Hausman to 14 months imprisonment and directed that restitution be made pursuant to a plan submitted by the government on consideration of the submissions of Brooklyn Legal Services as well as other student claimants with bona fide claims for restitution.
DISCUSSION
It is from the restitution portion of the sentencing judgments of August 11 and September 15, 1989 that the trustee appeals. He urges that we reverse those portions of the judgments that directed restitution be made by defendants Grundhoe-fer and Hausman to former students of the Hausman School because the students were not “victims” entitled to restitution under the Victim and Witness Protection Act, 18 U.S.C. §§ 3663, 3664 (1988) (Act). In the alternative, appellant argues that even were the former students victims under the Act, restitution should not have been ordered to the exclusion of the unsecured creditors of the Hausman School who also suffered economic loss as a result of the crimes of Grundhoefer and Hausman. Appellant also challenges the procedure utilized in entering the orders under the Act and Fed.R.Crim.P. 32.
I Standing
A. Constitutional Requirements
Whether a party has standing in the federal courts is always considered within the framework of Article III, Section 2, cl. 1, that extends federal judicial power to all “cases” and “controversies,” and which first asks whether the challenged action has caused a plaintiff injury in fact. See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151-52, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). Plaintiff must also show that the injury may fairly be traced to the challenged action of defendant, and that a favorable decision is likely to redress it, see Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976); Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). To establish standing a plaintiff must clearly set forth facts to satisfy Article Ill’s requirements.
Standing it is admitted does not always lend itself to consistently logical analysis. But injury in fact stands on this subject like a deeply driven channel marker for all to see while the swirl and eddy of inconsistent currents round-about it. It is that criterion that the appellant trustee has failed to satisfy. The direct, distinct and palpable injury in a criminal sentencing proceeding plainly falls only on the defendant who is being sentenced. It is the defendant and he alone that suffers the direct consequences of a criminal conviction and sentence. Collateral individuals to the proceeding — like the present appellant bankruptcy trustee — have not suffered an Article III direct injury sufficient to invoke a federal court’s jurisdiction to rule on their claim.
For this reason a private citizen generally lacks standing “to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R.S., 410 U.S. at 619, 93 S.Ct. at 1149; L. Tribe, American Constitutional Law § 3-16, at 124 (2d ed. 1988) (“[T]he interest in the just administration of the laws, including the interest in nondiscriminatory criminal enforcement, is presumptively deemed nonjusticiable even if invoked by persons with something beyond a generalized bystander’s concern[.]”); cf. Whitmore v. Arkansas, — U.S. -, 110 S.Ct. 1717, 1724, 109 L.Ed.2d 135 (1990) (denying private citizen standing to bring challenge to another’s death sentence under the Eighth Amendment). Hence, unless the trustee can establish that Congress gave him a right to restitution under the Act, see Linda R.S., 410 U.S. at 617 & n. 3, 93 S.Ct. at 1148 & n. 3, the trustee has not shown injury in fact and cannot challenge a restitution order imposed as part of a defendant’s sentence.
B. Prudential Limitations
To establish standing under a statute, a plaintiff must meet judge-made prudential limitations. These prudential principles attempt to limit federal courts from becoming enmeshed in cases that do not vindicate individual rights protected by the statute. One prudential limitation is the requirement that the interest a plaintiff seeks to vindicate is “within the zone of interests” protected by the federal law invoked. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Association of Data Processing Serv. Orgs., 397 U.S. at 153, 90 S.Ct. at 828. Under the zone-of-interests test a litigant lacks “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.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987). Although most often applied to legislation governing administrative agencies, the test also relates to legislation where analysis reveals that the litigant is the kind of party Congress sought to benefit under the statute. See L. Tribe, American Constitutional Law § 3-20, at 144. We turn to an analysis of the statute.
The restitutionary provisions of the Victim and Witness Protection Act were passed to “permit[ ] the court ... to order payment of restitution independently of a sentence of probation.” S.Rep. No. 97-532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.Code Cong. & Admin.News 2515, 2536 (1982 Legislative History). In pertinent part, the statute indicates that “[t]he court, when sentencing a defendant convicted of [a Title 18 offense] may order ... that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3663(a) (1988). Whether restitution should be ordered and the amount of restitution to be made is left completely within the discretion of the district court upon consideration of the losses of any victim, the financial condition of the defendant and any other relevant factor. See id. § 3664(a). A restitution order may be enforced by the United States or a victim provided relief in the order. Id. § 3663(h).
No private remedy for victims denied restitution is stated in the Act’s language. When a private right of action is not explicitly spelled out in a statute on its face we must gauge “Congress’ perception of the law that it was shaping or reshaping.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378, 102 S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982). The legislative history that tracks the Act’s enactment in 1982, and its subsequent four amendments, fails to reveal any such purpose on Congress’ part. See, e.g., H.Rep. No. 100-390, 100th Cong., 1st Sess. 11, reprinted in, 1987 U.S.Code Cong & Admin.News 2137, 2147; H.Rep. No. 98-1030, 98th Cong., 2d Sess. 86, reprinted in, 1984 U.S.Code Cong. & Admin.News 3182, 3269; 1982 Legislative History, 1982 U.S.Code Cong. & Admin. News at 2536-39.
Although no court has had occasion previously to rule on this specific issue, other decisions support our conclusion that appellant lacks a right to restitution under the Act. In holding that a restitution order made pursuant to Connecticut State criminal law was not dischargeable in Chapter 7 bankruptcy proceedings, the Supreme Court noted that “[although restitution does resemble a judgment ‘for the benefit of the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution.” Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 362, 93 L.Ed.2d 216 (1986). Restitution orders are primarily a means of punishing and rehabilitating defendants; compensation to the victim is incidental. See id. at 53, 107 S.Ct. at 362-63. Further, in United States v. Brown, 744 F.2d 905, 909 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), we upheld the restitu-tionary provisions of the Act under the Seventh Amendment and found that those statutory adjudications are not subject to the constitutional requirements of civil adjudication such as jury fact-finding. The victim as a non-party is accorded only a limited presence at a sentencing proceeding and has no right to appeal an inadequate remedy. See id. at 910.
In United States v. Cloud, 872 F.2d 846, 855 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989), it was held that the Act permitted restitution to an insurance company — -which suffered economic injury by compensating the direct victim, a bank — notwithstanding that the bank had settled all claims against the defendant and the insurance company had executed an agreement with the bank waiving its subrogation rights against the defendant. The court reasoned in Cloud that the insurance company did not waive its right to restitution under the Act when giving up its subrogation claims because neither the bank nor the insurance company “had an independently enforceable right to receive restitution under the [Act].” 872 F.2d at 854; accord United States v. Vetter, 895 F.2d 456, 459 (8th Cir.1990). But see United States v. Franklin, 792 F.2d 998, 1000 (11th Cir.1986) (expressing no view on “whether a victim has an implied right to intervene in a sentencing proceeding ... [or] whether an appeal may be taken to this court from an order denying such intervention or, if intervention is granted, from the district court’s final disposition of the restitution issue”).
Finding no congressional aim in the Act either explicitly or implicitly to provide victims with an enforceable right to obtain restitution, we hold that appellant is outside its zone of interests and without standing to contest the restitution orders entered in the Southern District courts.
II The Restitution Orders
Because our conclusion that appellant lacks standing to contest the restitution orders entered by the district courts against Grundhoefer and Hausman is one of first impression, prudence dictates that we touch briefly upon their propriety. The Act provides district judges with broad authority to order restitution as part of sentencing and restitution orders are reviewed under an abuse of discretion standard. United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990).
Section 3664 provides guidance for the district judge in entering restitution orders:
The court, in determining whether to order restitution[,] ... shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.
Although the district court must “consider” these factors in entering an order of restitution, it need not make explicit findings with respect to each. See United States v. Golomb, 811 F.2d 787, 791 (2d Cir.1987); see also Hughey v. United States, — U.S. -, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990) (“the factors listed in [§ 3664(a) ], including the catchall factor, are intended to guide a court’s discretion when it decides whether to award full or partial restitution under [§ 3663]”). A sen-tenting court is authorized to provide restitution to “any” victim of the offense, even those not named in the criminal indictment, see United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985), but is not bound to reimburse a victim's loss in full, United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986).
The orders directing that restitution be made for the benefit of the student victims of the Hausman School were not an abuse of discretion. The former students of the Hausman School were victims of defendants’ crimes under the Act notwithstanding that they were not named in the charges to which defendants pled guilty. See Durham, 755 F.2d at 512-13. Legal Services identified two groups of students who suffered economic injury from defendants’ crimes: those enrolled at the school at the time when it closed and who had incurred student loan liability without receipt of a reciprocal benefit and those students owed student loan refunds from the school. Concededly, these economic losses were caused by defendants’ fraudulent offenses and establish the students as victims under the Act.
Judge Sweet and Judge Leval both received letters from Legal Services and the trustee’s attorney outlining their respective positions vis-a-vis the restitution order. Judge Sweet entertained oral argument from the AUSA, the counsel for the trustee and Legal Services on this issue. Both district court judges considered the losses suffered by the students, unsecured creditors and federal government, the amount of restitution to be made by defendants, and the fact that restitution to the students would indirectly benefit the federal government by saving it the expense of reimbursing institutions for future defaulted student loans and the ancillary administrative costs.
Although each of the district court judges thought that restitution funds in the hands of Legal Services might be paid to students directly, such would be wholly inappropriate. Restitution is available “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v. United States, — U.S. -, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990). The specific offense here is conspiracy to defraud the United States and theft concerning programs receiving federal funds. Although the restitution award is only a fraction of the government’s potential loss of $24 million, the award in the instant matter is nevertheless substantial, amounting to almost $1 million, Hence, the reduction of students’ loan obligations must be accomplished by the restitution money going directly from the trust fund to the United States Department of Education. This will effectively reduce individual students’ loan obligations'—the name of the student and the amount of reduction to be provided by Legal Services—when the government receives the funds.
Consequently, the factors enumerated in § 3664 as well as another relevant factor—relief to the students which would also benefit the federal government—were carefully considered. In these circumstances, we cannot say the restitution orders providing relief to the student victims to the exclusion of the unsecured creditors represented by the bankruptcy trustee was an abuse of discretion.
The trustee asserts that our reversal of restitution orders that required narcotics offenders to “pay restitution ‘to a fund which shall be utilized for the medical treatment, rehabilitation and restitution of persons injured by addiction to narcotics in the 1980s’ ” in Casamento warrants reversal here. 887 F.2d at 1177. Casamento is distinguishable. In that case the orders provided restitution to individuals whose injuries had no nexus to defendants’ crimes and who were not identifiable from the order. Id. at 1177-78. In contrast, here the orders benefit the students who suffered direct economic injury from defendants’ crimes, most of whom have been identified by a list provided to Legal Services by the New York State Education Department.
We also reject the trustee’s argument that reversal is mandated by United States v. Weichert, 836 F.2d 769, 772 (2d Cir.1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 802 (1989), where we held that the sentencing court must make an adjudication under Fed.R.Crim.P. 32 when the defendant disputes the amount of restitution ordered. In the instant matter the amount of restitution is not in dispute because both Grundhoefer and Hausman agreed to pay restitution in the amounts of $740,000 and $1,046,745, respectively, as part of their plea agreements with the government. Thus, Weichert and the adjudicatory requirements of Rule 32 are not violated. Cf. United States v. Berrios, 869 F.2d 25, 32 (2d Cir.1989) (“[T]he amount of loss to be compensated through restitution must either be conceded by the defendant or be adjudicated by the court.”), amended on other grounds, Hughey, 110 S.Ct. 1979.
CONCLUSION
The trustee is without standing to appeal the restitution orders entered as part of the sentences imposed on defendants Grun-dhoefer and Hausman because he is outside the zone of interests protected by the Act. Further, were we to decide the issue of the propriety of the orders providing relief to the student victims to the exclusion of the unsecured creditors represented by the trustee, we would affirm and hold that the orders were not an abuse of the district courts’ discretion. But because appellant intervenor trustee is without standing to challenge defendants’ sentences, his appeal is dismissed.
Appeal dismissed.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BOSTON-CONTINENTAL NAT. BANK et al. v. WENDELL PHILLIPS CO.
No. 3135.
Circuit Court of Appeals, First Circuit.
June 25, 1936.
MORTON, Circuit Judge, dissenting.
both of Boston, Mass. (Goodwin, Proctor & Hoar, of Boston, Mass., on the brief), for Boston-Continental Nat. Bank and another. Murray F. Hall and Donald J. Hurley,
Alfred Gardner, of Boston, Mass. (Peabody, Arnold, Batchelder & Luther, of Boston, Mass., on the brief), for Wendell Phillips Co.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge.
This is an appeal from a judgment of the federal District Court for Massachusetts of October 21, 1935, in favor of the plaintiff in the sum of $9,850.37. The case was tried together with Kennedy v. Boston-Continental Nat. Bank (C.C.A.) 84 F.(2d) 592, Nos. 3131-3132 and Ulin v. Deitrick (C.C.A.) 84 F.(2d) 601, Nos. 3133-3134 by the District Judge, a jury having been duly waived.
May 21, 1926, the plaintiff leased to the defendant bank certain rooms in the Wendell Phillips building in Boston for ten years from July 1, 1926, at $7,000 a year for the first five years and $7,500 for the last five years, payable in equal monthly installments on the first day of each month for the preceding month. On December 17, 1931, the bank failed and the Comptroller took possession and appointed receivers, as stated in Nos. 3131— 3132, for the purpose of winding up the affairs of the bank. On January 13, 1932, the receiver notified the plaintiff that he elected not' to retain possession of the premises and, on March 30, 1932, vacated the same.
'The plaintiff’s declaration contains three counts. In the first one he seeks to recover a balance of $41.67 remaining unpaid on the installment of rent falling due December 1, 1931, for the preceding month. In the third count he seeks to recover rent at the stipulated rate from December 1, 1931, to December 17, 1931, amounting to $312.50. In the second count it is alleged that the defendant owes the plaintiff $16,250, the difference between the rental value of the premises for the remainder of the term and the rent reserved in the lease. This count is based on the following provision of the lease:
“This lease is made on the further condition that if the said Lessee shall neglect or fail to perform or observe any of the covenants herein contained, on its part to be performed or observed, or if the estate hereby created shall be taken on execution or by any process of law, or if the said Lessee shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of its property for the benefit of creditors, or, if, the Lessee being a corporation, any Receiver of its property shall be appointed by a court of competent jurisdiction, then and in any such case (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance) the said Lessor may lawfully, immediately or at any time thereafter, without notice or demand, enter into or upon said premises or any part thereof in the name of the whole, and repossess the sáme as of its former estate and expel the said Lessee and those claiming through or under him, and remove their effects (forcibly if necessary), and if it elects may store the same for account and at the expense and risk of the Lessee without being guilty of any. manner of trespass and without prejudice to any rights or remedies which might otherwise be used for arrears of rent or preceding breach of covenant, repossess the same as of its former estate; and upon entry aforesaid the lease shall determine and the Lessee covenants that in the case of such termination, or in case of termination under the provisions of statute by reason of default on the part of the Lessee, it will indemnify the Lessor against all loss of rent and other payments which it may incur by reason of such termination during the residue of the time first above specified for the duration of the said term, or at the election of the Lessor the Lessee will upon such termination pay to the Lessor, as damages, such a sum as at the time of such termination represents the difference between the rental value of the premises for the remainder of the said term and the rent and other payments herein named; in case of eviction of the said Lessee, or in case of the termination of this lease from any cause, the said Lessor may immediately recover of the said Lessee the pro-rata rent up to such time, irrespective of the periods herein prescribed for the payment of rent.”
The District Court found that the plaintiff entered to terminate the lease on March 30, 1932, and that it was terminated on that day; that the fair rental value of the premises from March 30, 1932, to the end of the term was $21,250; that the rent reserved for the same period was $31,875, and the excess of rent reserved over the fair rental value, discounted at 5 per cent., amounted to $9,496.20. It also found for the plaintiff as claimed in the first and third counts. These several sums make up the judgment appealed from.
No question is made as to the liability of the defendants on the first and third counts. The defendants, however, complain that the District Court erred in finding that the plaintiff was entitled to recover $9,496.20 on the second count.-
We think that the District Court erred in its finding and ruling as to the second count, for the reasons stated in our opinion in Nos. 3131-3132. The claim sued upon in this count did not arise and become fixed until after the entry and termination of the lease, a time long after the bank was declared insolvent, and in the nature of the thing the amount of the claim could not be determined as of a time the claim did not exist i. e., the time of the declaration of insolvency.
The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs in this court to the appellants.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
WESTBROOK v. ARIZONA.
No. 1250,
Misc.
Decided May 2, 1966.
W. Edward, Morgan for petitioner.
Darrell F. Smith, Attorney General of Arizona, and Paul G. Rosenblatt, Assistant Attorney General, for respondent.
Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense. “The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Johnson v. Zerbst, 304 U. S. 458, 465; Carnley v. Cochran, 369 U. S. 506.
From an independent examination of the record, we conclude that the question whether this “protecting duty” was fulfilled should be re-examined in light of our decision this Term in Pate v. Robinson, 383 U. S. 375. Accordingly, the judgment of the Supreme Court of Arizona is vacated and the case is remanded to that court for proceedings not inconsistent herewith.
It is so ordered.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
WATERMAN STEAMSHIP CORP., Respondent, Appellant, v. Federico Marin GUTIERREZ, Libelant, Appellee.
No. 5887.
United States Court of Appeals First Circuit.
April 11, 1962.
Antonio M. Bird, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, P. R., was on brief, for appellant.
Harvey B. Nachman, San Juan, P. R., with whom Nachman & Feldstein, San Juan, P. R., was on brief, for appellee.
Before MAGRUDER, ALDRICH and SMITH*, Circuit Judges.
Sitting by assignment.
ALDRICH, Circuit Judge.
This is a libel by a longshoreman for personal injuries sustained on a dock at which respondent’s vessel was unloading, allegedly by reason of “improper storage of cargo on said dock.” In addition, there were general allegations of unseaworthiness of the vessel and of negligence of its master, officers and crew. The district court made findings in libelant’s favor as to unseaworthiness and negligence and assessed damages. It rejected a defense of laches. Respondent appeals.
The accident occurred on October 21, 1956. Libelant was in the employ of a stevedore unloading respondent’s vessel pursuant to contract. The first notice respondent received of the claim and, for all that appears, of the injury was when suit was brought on January 9, 1959. By this date more than twice the period of the analogous statute of limitations had elapsed. The court found, “While working on the dock libelant slipped on [some] beans, twisted his torso and fell upon his buttocks. The injuries sustained by libelant were proximately caused by this unseaworthiness of the vessel, the failure to furnish libelant with a safe place to work and by the negligence of the respondent.” With respect to laches the court found that libelant had shown a sufficient excuse by the fact that he consulted counsel within the statutory period, and concluded that respondent was not prejudiced by the delay because the witnesses remained available and respondent had its own “records indicating the cargo damage.”
The first question is the responsibility for the beans. The court found that many of the bean bags were defective; that coopers were employed in sewing them up; that nonetheless beans were spilled from the drafts as they were being swung ashore. “On one occasion, according to the records produced by respondent and admitted into evidence, a bag broke open in mid-air spilling its contents all over the dock. This event occurred while a draft from Hold No. 1 was in mid-air and still attached to the vessel. Hold No. 1 is immediately adjacent to No. 2 forward. Beans scattered about the surface of the pier caused a dangerous condition for the longshoreman. The cargo being discharged was defective and unseaworthy. The ship owner was negligent in permitting the broken and weakened bags to be discharged, when it knew or should have known that injury was likely to result to persons in the service of the ship who had to work on and about the spilled beans. The condition on the pier was caused by the respondent’s unseaworthy cargo and its lack of care. In permitting this condition to remain existent, the respondent failed to furnish libelant with a safe place to work.”
The quoted portion of the court’s opinion contains several errors. In the first place, the respondent’s records do not show that the bag broke open in midair, but show that it fell from mid-air, and broke when it hit the deck. Secondly, the bag fell, and beans were spilled, whether from there or anywhere else, by no conduct in which respondent was shown to have participated. Cf. Robillard v. A. L. Burbank & Co., D.C.S.D.N.Y.1960, 186 F.Supp. 193, 197. And it is undisputed, with respect to “permitting this condition to remain existent” on the pier, that respondent had neither control of nor even a right to control that locus. The court’s findings as to respondent’s negligence cannot stand.
There remains the finding of unseaworthiness of the cargo. One speaks of unseaworthy cargo really in terms of result: rather, it is the unsafe condition, created by the cargo, which is felt to be a violation of some absolute duty of the shipowner. We recognize, of course, that a shipowner’s duty is not to be evaded by calling a man a longshoreman and placing him in someone else’s employ. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. But while labels cannot avoid liability, they should not be used to create it. This is not a case of a defective piece of ship’s equipment, or of a dangerous condition aboard the ship. Nor is it a case of a claimant whose work carries him both on and off the vessel. At best, lading, which was not part of the ship, which did not make the ship unsafe, and which had left the ship, is being used to impose absolute liability upon the shipowner for a condition caused by the lading to a shore worker. Some may feel this gangway has been crossed. See, e. g., Hagans v. Ellerman & Bucknall S.S. Co., D.C.E.D.Pa., 1961, 196 F.Supp. 593; Fitzmaurice v. Calmar S.S. Corp., D.C.E.D.Pa., 1961, 198 F.Supp. 304. But it seems to us that to extend such protection disregards the whole origin and purpose of the doctrine of unseaworthiness. True, such a worker may be broadly argued to be in the service of the ship. But not even in a technical sense was he on or about to go “on a voyage.” Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 413, 74 S.Ct. 202, 98 L.Ed. 143. His dangers were not the same. Ibid. We see no difference to a land employee in source, cause, risk, or effect between beans spilled on a dock, or on a trucking platform, or on a warehouse floor in Denver. The very fact that unseaworthiness obligations are “awesome,” Kent v. Shell Oil Co., 5 Cir., 1961, 286 F.2d 746, 752, suggests that they should not be handled with prodigality. We are unwilling to recognize one here.
A recent case somewhat close on the facts is Partenweederei MS Belgrano v. Weigel, 9 Cir., 1962, 299 F.2d 897. There libelant was a dock worker engaged in driving a tractor handling lumber on the dock which was about to be loaded onto respondent’s vessel. He was struck by a defective ship’s boom. The court found that libelant was not performing traditional ship’s work within the scope of the obligation of seaworthiness. While the court noted a distinction between cargo not yet connected with the ship’s loading gear and cargo actually being loaded, it is in common with us in recognizing limits in this area to principles of absolute liability. In a way the facts were more favorable to libelant than in the case at bar because it was the ship’s gear that was defective and not merely cargo previously aboard.
There is a more specific difficulty. The court overruled the defense of laches because it found that libelant had a valid excuse for the delay and because respondent was not prejudiced. The only suggested excuse was that libel-ant consulted counsel within the statutory period. This has never been regarded as extenuation. Wilson v. Northwest Marine Iron Works, 9 Cir., 1954, 212 F.2d 510; Marshall v. International Mercantile Marine Co., 2 Cir., 1930, 39 F.2d 551; McGrath v. Panama R. Co., 5 Cir., 1924, 298 F. 303. Assuming that absence of excuse is not fatal if there has been no actual prejudice, but cf. Taylor v. Crain, 3 Cir., 1952, 195 F.2d 163, we think that such lack of prejudice has been shown only in part. The court’s first basis, that the witnesses were still available, was not equivalent to an opportunity to examine them at an earlier date. Cf. Redman v. United States 2 Cir., 1949, 176 F.2d 713, Redman v. United Fruit Co., 2 Cir., 1950, 185 F.2d 553. It was demonstrated that the memories of these witnesses had become impaired. While they testified to loose beans falling from the drafts, they also testified similarly as to rice and feed. Yet defendant’s records, of which the court quite properly made a point in another connection, showed that no rice or feed was discharged until after the accident. And while the records did in fact show spilling from the drafts, they showed none near the hatch opposite which libelant was working. The testimony as to the defective-bag source of the beans on which libelant was found to have slipped is highly questionable. We think as to this portion of the claim it was error to find that respondent was not prejudiced by the delay.
There is a similar weakness with respect to the evidentiary proof. Libelant cannot recover for beans that spilled from the drafts without some affirmative showing that they were the ones upon which he slipped. With an admitted substantial source of a large quantity of beans — the dropped bag — it seems to us that any finding that libelant fell, instead, on beans which spilled from defective bags on the drafts would be entirely speculative. For either of these reasons we could not recognize a finding that libelant’s fall was so caused.
On the other hand, as to the dropped bag, we quite agree that since respondent’s own records showed it, respondent was not prejudiced. This, however, does not help libelant. Even if it could be found that libelant slipped on beans from that source, there was no evidence that this bag was defective, or that any defect caused it to drop. For all that appears there may have been improper operation by the winchman. His negligence, as already stated, was not the responsibility of the respondent. Accordingly, there is no basis for supporting a finding for libelant on any theory. Respondent’s motion for judgment should have been allowed.
Judgment will be entered vacating the decree of the District Court, and remanding the case to that Court with direction to dismiss the libel.
. Even libelant’s employer had no prior notice of the basis of the present claim. Libelant told the State Insurance Fund not that he slipped, as now alleged, but that he fell because he was carried by the sling due to improper action of the winehman.
. What was meant by “this unseaworthiness” will be later discussed.
. If there could be said to be any ambiguity in the record (which we doubt) it is clearly resolved by reading the entries as to similar occurrences at other hatches.
. Singularly enough, the doctrine of absolute tort liability for injuries ashore, to the exent that there have been cases, seems to exist solely for the benefit of longshoremen. Whether those decisions represent the independent views of the courts concerned, or are merely thought to be required by those of the Supreme Court, may be problematical. Cf. Robillard v. A. L. Burbank & Co., supra. But we know that on at least one occasion we ourselves have erroneously exaggerated those views. New York, N. H. & H. R. Co. v. Henagan, 1 Cir., 1959, 272 F.2d 153, rev’d, 1960, 364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183.
. Strictly, it must be observed that the court’s attributing libelant’s fall to beans from defective bags appears to be based primarily on its mistaken finding that a bag broke in mid-air.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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".
BOSTON &. M. R. R. v. BRESLIN.
No. 3071.
Circuit Court of Appeals, First Circuit.
Dec. 17, 1935.
BINGHAM, Circuit Judge, dissenting.
See, also, Muller v. Boston & M. R. R. (D.C.) 9 F.Supp. 802.
Carl C. Jones, of Concord, N. H. (Demond, Woodworth, Sulloway, Piper & Jones, of Concord, N. H., on the brief)”, for appellant.
Edward O. Proctor, of Boston, Mass. (William A. Cross and Withington, Cross, Proctor & Park, all of Boston, Mass., on the brief), for appellee.
Before BINGHAM and MORTON, Circuit Judges, and BREWSTER, District Judge.
Certiorari denied 56 S. Ct. 590, 80 L. Ed. —.
MORTON, Circuit Judge.
This was an action of tort for personal injuries. There was a verdict for the plaintiff, and the defendant has appealed. The injury occurred o.n the same turntable re-, ferred to in our opinion in Tashjian v. Boston & Maine R. R., 80 F.(2d) 320, handed down on November 27, 1935.
The plaintiff was about 8 years old. He was playing with other children on the defendant’s turntable. They had no right to be there, and were trespassing on the defendant’s property. The plaintiff and his companions removed what is called an H bar, weighing about 100 pounds, which was used to lock the turntable in position. They then proceeded to put the turntable in motion. The plaintiff got down into the shallow pit in which the turntable revolves in order to assist in pushing it. While he was down there some one called out, “Here comes a man.” The plaintiff thereupon tried to climb out of the pit and was caught by the revolving turntable and injured.
As stated in the other opinion, the turntable in question is located on the defendant’s property adjacent to a public way in the thickly settled part of Stoneham, Mass.; it was visible from the street, and children frequently resorted to it and played with it; it was unquestionably a dangerous thing for children to play with, and was, or might be found to be, attractive to them. The defendant’s employees were well aware of these facts. They knew that children frequently played with the turntable, and, according, to the testimony, had made diligent efforts to prevent them from doing so. The defendant’s witnesses testified that they had gone to parents of children found playing on the turntable, when they could learn who the parents were, and warned them of the danger; that they had made complaints about the trespassing children to the chief of police and to the authorities of the parochial school which the children attended, and had asked for co-operation in keeping the children off-'the railroad property; that they had’ put up “no trespassing” signs; that they had attempted to keep the turntable locked, but the padlocks used had been broken off almost as fast as they could be replaced; that as many as two or three locks in a week had been put on the turntable and broken off, and locks had sometimes been ordered a dozen at a time for this purpose; that the locks would be broken by the children and removed. The accident to the Tashjian boy occurred shortly before that in which the present plaintiff was hurt.
The first point urged by the defendant is that its motion to dismiss ought to have been granted; this involves a question of jurisdiction based on diversity of citizenship. The defendant is incorporated under the laws both of Massachusetts where the accident occurred and of New Hampshire where the case was tried. By the settled law of Massachusetts, children trespassing on turntables are not entitled to recover if they are injured. Daniels v. New York & N. E. R. Co., 154 Mass. 349, 28 N.E. 283, 13 L.R.A. 248, 26 Am.St.Rep. 253 (Sept. 3, 1891); Gay v. Essex St. Ry. Co., 159 Mass. 238, 34 N.E. 186, 21 L.R.A. 448, 38 Am.St.Rep. 415; Romana v. Boston Elevated R. Co., 218 Mass. 76, 105 N.E. 598, L.R.A. 1915A, 510, Ann.Cas. 1917A, 893; Adamowicz v. Newburyport Gas Co., 238 Mass. 244, 130 N.E. 388. The “attractive nuisance” was definitely -repudiated in filie Daniels Case, supra, and that view has been consistently adhered to ever since. For this reason the plaintiff went into New Hampshire and brought suit there, alleging that he was a citizen of Massachusetts and the defendant a citizen of New Hampshire, and that there was jurisdiction in the federal ■court by reason of diversity of citizenship. The defendant contends that on such facts there was no jurisdiction. The precise question was decided by this court more than 30 years ago m favor of jurisdiction. Boston & Maine R. R. v. Hurd, 108 F. 116, 56 L.R.A. 193 (C.C.A. 1, 1901), certiorari denied 184 U.S. 700, 22 S.Ct 939, 46 L.Ed. 765. That case has since been accepted as establishing the law of this circuit; and while the point is not free from doubt, the decision is by no means so clearly .wrong as to require us to overrule it.
The' next assignment of error to which we shall refer is that the District Judge erred in not granting the defendant’s motion for a directed verdict. Three grounds were relied on in support of this motion: That the defendant’s liability should be decided according to the law of Massachusetts ; (2) that there was no evidence that the defendant was negligent in respect to the maintenance of the turntable; (3) that the plaintiff’s contributory negligence was established on his own testimony as a matter of law.
The “attractive nuisance” doctrine is recognized as law in the federal courts. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. The defendant contends, however, that, in cases in which jurisdiction rests on diversity of citizenship, the federal courts in determining liability in tort for negligence will ordinarily follow the law of the state where the accident occurred if that law is well settled; and that there is no reason why “turntable cases” should stand on any different or exceptional footing. The plaintiff’s position is, that “the question is one of general, not local law.”
It is well settled that ordinarily in-tort cases, in which the jurisdiction of the federal courts rests on diversity of citizenship, they will follow the law of the place where the tort was committed. Reed & Barton Corporation v. Maas (C.C.A. 1) 73 F.(2d) 359, 361, citing cases; New York Central R. Co. v. Chisholm, 268 U.S. 29, 45 S.Ct. 402, 69 L.Ed. 828, 38 A.L.R. 1048. We are not aware of any “general law” relating to liability in accident cases, as the plaintiff contends. The nearest approach to it in the federal courts is Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed, 772, and similar cases, in which it was held that an interstate carrier’s liability for accidents to its employees would be determined on general principles of common law rather than by the law of the state in which the accident occurred. Those cases rest on very different considerations from the one before us.
The plaintiff’s position really is that, whatever the law may be as to other kinds of accidents, it is settled by decisions of the Supreme Court that in “turntable cases” the lex loci will be disregarded and the federal law which recognizes the “attractive nuisance” doctrine will be applied. Six decisions involving this question have been referred to. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Union Pacific R. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; Erie R. Co. v. Hilt, 247 U.S. 97, 38 S.Ct. 435, 62 L.Ed. 1003; New York, N. H. & H. R. Co. v. Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173; Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. Of these the Britt, Hilt, and Fruchter Cases were decided in favor of the defendant. The Stout Case arose in Nebraska, about six years after that state was admitted into the Union, and at a time when there was no local law on the point in that case. The McDonald Case arose in Colorado. The local law is not referred to in the opinion. The plaintiff with his mother had just alighted from a train at the defendant’s statioix. He took a path over the defendant’s land which the defendant permitted the public to tise. He strayed from the path to look at the defendant’s mine and was burned by hot slack, the danger of which was not apparent. The court held that the defendaixt, permitting the public to go on its land, to use the path and to visit its mine, and knowing that they did so, was negligent in maintaining what amounted to a dangerous trap so near the path; and that under the circumstances the plaintiff was not to be regarded as a trespasser. There is nothing in the opinion indicating that such questions are of general, rather than of local, law. In the Hilt Case, a playing child, trespassing on the railroad yard, was injured by the sudden movement of a train. A local statute which precluded recovery in such cases was held to be controlling. The opinion says: “The statute seemingly adopts in an unqualified form the policy of the common law as understood we believe in New Jersey, Massachusetts, and some other States, that while a landowner cannot iixtentiorxally injure or lay traps for a person coming upon his premises without license, he is not bound, to provide for the trespasser’s safety from other undisclosed dangers, or to interrupt his own otherwise lawful occupations to provide for the chance that some one may be unlawfully there.” Holmes, J., 247 U.S. 97, at page 101, 38 S.Ct. 435, 436, 62 L.Ed. 1003. The Best Case arose in the District of Columbia, and of course no question of other than federal law was involved.
There is nothing in these decisions establishing any explicit rule of law governing “turntable” or “attractive nuisance” cases. They stand on the same footing as other accidents, and are controlled by the lex loci. It was so held in this circuit more than 30 years ago in McCabe v. American Woolen Co. (C.C.) 124 F. 283, affirmed (C.C.A.) 132 F. 1006, which also held that the Stout Case was not law in Massachusetts. We find nothing in the decisions which have since been made which requires us to overrule the McCabe Case.
The judgment appealed from must be reversed, and the case remanded to the District Court for further proceedings not inconsistent with this opinion.
The judgment of the District Court is vacated, the verdict is set aside, and the case is remanded to that court for further proceedings not inconsistent with the opinion; the appellant recovers costs of appeal.
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_direct2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BAYSIDE BUS CORPORATION v. UNITED STATES.
No. 67.
Circuit Court of Appeals, Second Circuit.
Nov. 9, 1942.
Writ of Certiorari Denied Feb. 8, 1943.
Max E. Greenberg, of New York City (Emanuel Harris, of New York City, of counsel), for plaintiff-appellant.
Mathias F. Correa, U. S. Atty., of New York City (John B. Creegan, Asst. U. S. A tty., of New York City, of counsel), for defendant-appellee.
Before L. HAND, AUGUSTUS N. HAND and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The complaint sets forth three causes of action alleging a breach by the defendant of three contracts designated as “purchase orders” calling for. the transportation of WPA workers by the plaintiff from the Ferry Terminal at Staten Island to various job sites during the respective months of January, February and March, 1939. A per capita charge for transportation was stipulated in the contracts varying for different zones. Each contract contained a provision that: “Payment will be made only for the exact number of passengers transported in accordance with all the terms of the contract at the price quoted herein.”
Each contract also contained the following provision:
"The aforesaid number of workers is approximate only, and cannot be guaranteed. However, successful vendor will be notified by 12:00 noon of the number of passengers to be carried the following day, subject to a variance of 10% more or less, although vendor’s acceptance of notice by noon of the previous working day of a greater modification than 10% will be held binding.
“Vendor will supply sufficient buses to conform to schedules hereinbefore mentioned, and will also have available a reserve of 10% to meet contingencies.”
Recovery is sought by the plaintiff for a deficiency greater than the 10% between the number of workmen designated in the notices and the number actually transported. Although the contract provided that the number of passengers to be transported “cannot be guaranteed,”, nevertheless the provision for notification in advance of the number to be carried “subject to a variance of 10% more or less” can have no meaning unless the notices were intended to protect the Bus Company from providing an excessive number of busses. Accordingly we think that there was a breach of contract whenever the Works Progress Administrator failed to give accurate notices within the specified limits.
It was proved that the workmen offered for transportation did not equal 90% of the number embraced in the notices given for the purchase orders. Therefore the plaintiff is entitled to recover any losses it suffered from having to provide extra busses to carry less than that number. The difficulty, however, in allowing recovery upon the record before us is that the number of passengers carried seems to have more than filled the plaintiff’s own busses. While there was a substantial shortage as compared with 90% of the number of passengers designated in the notices, it would seem that any loss must have fallen upon the subcontractors from whom the plaintiff engaged busses sufficient to deal with the number in excess of what plaintiff’s own busses could carry.
It appears from Exhibit 3 that plaintiff usually furnished only four busses of its own, and between March 1 and March 15 it furnished only three. There were apparently always enough passengers offered to fill plaintiff’s own busses, though perhaps in certain instances it chose to allow its subcontractors to carry a few passengers who might have been placed in its own vehicles. At least there seems to have been no proof, or even claim, that it lost anything by the incorrect notices except as it was under some obligation to its subcontractors occasioned by the shortage. It is, therefore, necessary to determine what was its obligation to the subcontractors.
Paul J. Pierce, the president of the plaintiff, testified as to the contract with the subcontractors: “I agreed to give them $18 a day and anything over $18 a day I was to retain for myself and out of that $18 certain deductions were to be made” (Rec. 41). After itemizing the nature of these deductions, the details of which are immaterial for the purposes of discussing the final obligation to the subcontractors, Pierce was asked: “What happened after you started operating?” He replied that the quotas ordered by the government (that is those covered by the notices) were much less than the actual number of employees furnished for transportation; that he could not pay the subcontractors $18 a day for their coaches; that he did pay them at the government contract rate for the passengers actually carried, less the deductions mentioned; and that he promised, if he recovered “any additional money in lieu of the variance being greater than what the contract provided for,” he “would do the right thing and compensate them for that difference to their satisfaction” (Rec. 44).
There is no proof either that the plaintiff bound itself to order busses in the future or that the subcontractors bound themselves to supply them. Under the first arrangement made between the parties the plaintiff owed the subcontractors $18 a day for each bus furnished during the period prior to entering into the later arrangement which limited payments to the number of passengers carried. The later arrangement, like the first one, seems to have consisted of a series of offers made by the plaintiff and accepted from time to time by the subcontractors, but upon the understanding that the former would pay the latter at the government contract rate for the passengers actually transported and that the subcontractors would on their part accept this payment in discharge of anything due by reason of the $18-a-day obligations incurred under the original arrangement. In addition it was provided that if the plaintiff succeeded in recovering any loss under its contract with the government, the subcontractors would be recompensed in some fair manner.
It is evident from the foregoing that while, because of the inaccurate notices, there were breaches of the three contracts known as “purchase orders,” the plaintiff could lose only such expense as it incurred because of furnishing too many busses. However, any unnecessary busses provided were not furnished at its expense but at that of the subcontractors, who were paid at the government contract rate for all passengers carried. They accepted this payment in full discharge of all obligations of the plaintiff to them, other than its promise to seek redress of the government. But, as we have seen, the value of this promise depended upon the continued existence of a duty on the part of the plaintiff to compensate the subcontractors for providing unnecessary busses — a duty negatived by the final agreement with the subcontractors. Accordingly, no damages were proved and the complaint was properly dismissed.
Judgment affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_source
|
F
|
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.
AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Blue Jeans Corporation and Whiteviile Manufacturing Company, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLUE JEANS CORPORATION and Whiteviile Manufacturing Company, Respondent. Amalgamated Clothing Workers of America, AFL-CIO, Intervenor.
Nos. 23248, 23405.
United States Court of Appeals, District of Columbia Circuit.
Sept. 25, 1970.
Mr. Jacob Sheinkman, New York City, was on the brief for petitioner in No. 23,248 and intervenor in No. 23,405.
Messrs. Arnold Ordman, Gen. Counsel, National Labor Relations Board, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John I. Taylor, Jr. and Roger L. Sabo, Attys., National Labor Relations Board, were on the brief for respondent in No. 23,248 and petitioner in No. 23,-405.
Mr. J. W. Alexander, Jr., Charlotte, N. C., entered an appearance for intervenor in No. 23,248 and respondent in No. 23,-405.
Before BAZELON, Chief Judge, TAMM, Circuit Judge, and CHRISTENSEN, U. S. District Judge, District of Utah, in Chambers.
Sitting by designation pursuant to Title 28, U.S.Code, Section 292 (c).
PER CURIAM:
The union in these cases struck against Blue Jeans Corporation, protesting the company’s refusal to bargain. When the dispute came before the National Labor Relations Board, the Board found that the company had failed to bargain in good faith. It ordered the company to cease and desist from the unfair labor practices found, to bargain collectively with the union upon request, and to post appropriate notices.
On two particular issues, the Board found that the company did bargain in good faith: first, the union’s demands relating to the checkoff of union dues, and second, the demand for a union-conducted time-study or, alternatively, arbitration on piece rates. These two issues are all that remain in these cases. The union seeks a determination by this court that the company’s refusal to concede on these issues constituted failure to bargain in good faith, and it seeks an order compelling the company (1) to grant the checkoff provision and (2) to permit the time-study or agree to binding arbitration on piece rates.
We find substantial evidence in the record to support the Board’s decision on both of these issues.
With regard to the checkoff provision, we note that the company’s policy of allowing only essential deductions from the payroll can be traced back ten years.
The union’s demand to be allowed to conduct a time-study is more persuasive initially, but we cannot accept the union’s conclusion that the company’s behavior manifested “an attempt to retain sole and exclusive control over the establishment of wages.” Company and union were agreed on the average hourly wage that the piece rates should yield. The Trial Examiner reasonably concluded that the union’s refusal to examine the time-study records which the company produced, and its failure to request other records which the company was apparently willing to produce, neither tested the company’s good faith nor brought its alleged bad faith into focus.
These considerations, in the particular context of the dispute before us, persuade us that the Board’s decision in these cases must be affirmed. We deny the union’s petition for review, and we enforce the Board’s order as it stands against the company.
. The union does not seriously pursue on appeal its complaint about the company’s refusal to agree to arbitration on wage rates. We note, however, that we see no reason to overturn the Trial Examiner’s conclusion that the company bargained in good faith on this issue.
We further note that even if we agreed with all the union’s contentions with regard to bargaining in good faith, we could not grant precisely the relief it seeks. H. K. Porter Co. v. National Labor Relations Board, 397 U.S. 99, 90 S.Ct 821, 25 L.Ed.2d 146 (1970), certainly precludes a Board order requiring that the company agree to the checkoff provision.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_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.
Thurman S. ALPHIN, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent, Administrator of the Federal Aviation Administration, Intervenor.
No. 86-1662.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 20, 1987.
Decided Feb. 26, 1988.
Paul Victor Jorgensen, Washington, D.C., for petitioner.
Allan H. Horowitz, with whom Marguerite L. Price, Washington, D.C., was on the brief for intervenor. William H. Gonzalez, Washington, D.C., also entered an appearance for intervenor, F.A.A.
Before WALD, Chief Judge, SENTELLE, Circuit Judge, and GIBSON , Senior Circuit Judge.
Of the United States Court of Appeals for the Eighth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Senior Circuit Judge FLOYD R. GIBSON.
FLOYD R. GIBSON, Senior Circuit Judge:
Thurman S. Alphin appeals from an order of the National Transportation Safety Board (NTSB or Board) denying his application for attorney’s fees and costs under the Equal Access to Justice Act, 5 U.S.C. § 504 (EAJA). The sole issue on appeal is whether the Administrator of the Federal Aviation Administration (FAA) was substantially justified in initiating and continuing proceedings against Alphin resulting in the suspension of his Inspector’s Authorization Certificate. The NTSB found that the Administrator was substantially justified and denied Alphin’s application. We reverse and remand with directions to reconsider the application for a possible award of partial fees and costs.
I. Background
In the fall of 1979, Tri-State Airways, Inc., a flying school located in New Jersey, brought two Cessna 150 airplanes to Al-phin Aircraft for engine overhauls. At the conclusion of the overhauls the engines were signed off — approved as airworthy— by Thurman Alphin and returned to TriState.
Shortly thereafter, Tri-State began experiencing problems with the airplanes such as engine vibration and roughness and loss of power. The airplanes were returned to Alphin Aircraft several times, but the problems persisted. Tri-State contacted an FAA Inspector, Raymond Whitehead, about the problems and he tagged the engines for teardown.
On March 19, 1980 the engines were disassembled at Penn Yan Aero Service, an FAA certified engine overhaul facility. The work was performed by a Penn Yan employee in the presence of FAA Inspector Albert Lengyel. Lengyel prepared a written report listing the mechanical problems found during the teardowns.
With regard to engine serial # 252402 Lengyel reported: 1) low compression in cylinder number one; 2) out of round cam shaft lobe measurements; 3) exhaust valve guide measurements “out of limits”; 4) an upside-down valve spring; 5) excessive exhaust valve clearance on cylinder number two; 6) all rocker arm bushings “out of limits”; 7) worn clutch parts; 8) failure to comply with several service bulletins; and 9) a cracked crankshaft.
With regard to engine serial #253829-A-48 Lengyel reported: 1) number one cylinder was steel but pistons and rings were designed for chrome cylinder; 2) four valve guide measurements “out of limits”; 3) excessive valve clearances on three valves; 4) all but two rocker arm bushings “out of limits”; 5) worn clutch parts; 6) excessive crankshaft to camshaft gear tooth clearance; and 7) carburetor not overhauled.
The report was forwarded to Whitehead who recommended that Alphin’s Inspector’s Authorization Certificate be suspended. In August 1980 the FAA issued an order suspending Alphin’s certificate for sixty days on the grounds that he had performed two substandard engine overhauls and had operated a certified repair station without a Repair Station Certificate. The order was later amended to charge Alphin with signing off the substandard overhauls, rather than performing them himself.
Alphin appealed the suspension to the NTSB and a hearing was held before an administrative law judge. The AU found that Alphin did not need a Repair Station Certificate to sign off the engines because he held an Inspector’s Authorization Certificate. The AU also found, however, that Alphin had improperly signed off the two engines and ordered a forty-five day suspension. Alphin’s appeal to the NTSB was denied.
While the administrative proceedings were pending, Tri-State filed a lawsuit against Alphin Aircraft in New Jersey state court. Lengyel testified as an expert on behalf of Tri-State, but his testimony was inconsistent with his testimony before the AU. Based on Lengyel’s new testimony, the NTSB granted Alphin a rehearing before an AU. Upon rehearing the AU once again found that the overhauls were substandard.
On appeal the NTSB reversed. The Board found that the FAA had failed to prove that the crack in the crankshaft in #252402 existed at the time Alphin Aircraft overhauled the engine. The crack could have developed during the eighty-three hours the aircraft was operated after Alphin’s overhaul. Also, Alphin could not be held responsible for the out-of-round camshaft because the flaw was not one which should have been detected during the overhaul. The test which would have disclosed the flaw is not mandated and the overhaul manual does not provide cam lobe measurements. Similarly, the Board found that compliance with the service bulletins was not mandatory and the overhaul procedure does not require servicing the clutch assemblies. Further, several of the alleged deficiencies — a forging lap on the connecting rod cap, an upside down valve spring, and a steel cylinder — would not affect engine performance.
The Board also considered the allegedly excessive valve train measurements and concluded that the FAA had failed to prove that any problems existed. The notations that certain measurements were “out of limits” did not establish a basis from which the Board could conclude that the parts were excessively worn. Since the mechanic who took the measurements was not present to testify, it could not be determined whether the measurements were taken accurately. Also, the go-no-go gauges which were used were machined to new rather than overhauled engine specifications. Therefore, Lengyel’s report, at best, indicated that the engines no longer had the measurements found in new engines — a fact irrelevant to whether the overhauls were correctly performed.
With regard to the measurements which were specifically recorded in Lengyel’s report, the Board found that the FAA had failed to prove that the excess clearances did not result from the hours of service each airplane accumulated after Alphin’s overhaul and before Lengyel’s inspection.
Alphin’s timely application under the EAJA for attorney’s fees and costs in the amount of $135,525 was denied by the AU and on appeal by the NTSB. Alphin then appealed to this court.
II. Discussion
The EAJA provides, in relevant part:
(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
(b)(1) For the purposes of this section—
(E) “position of the agency” means, in addition to the position taken by the agency in the adversary adjudication, the action or failure to act by the agency upon which the adversary adjudication is based; except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings.
5 U.S.C. § 504 (Supp. Ill 1985).
We are troubled by the language used by the NTSB when it denied Alphin’s application for fees and costs. Having read and reread the Board’s order many times, we are unable to reach any conclusion other than that the NTSB incorrectly evaluated whether the FAA was substantially justified. In several places the Board indicated that the FAA was substantially justified because the evidence against Alphin, unrebutted and standing alone, was sufficient to establish a violation. For example, when discussing the FAA’s burden on the EAJA application the Board stated that “excluding consideration of a respondent’s rebuttal case, the Administrator must produce enough substantial, probative, and reliable evidence as is necessary to permit a finding that the violations charged in fact occurred.” Application of Thurman S. Alphin, N.T.S.B. Order EA-2342 at 3 (1986) (emphasis added). The Board further stated that its finding that Alphin had not violated maintenance performance standards “did not represent a judgment that the Administrator had not produced enough evidence to support a charge under the regulation, only that it was not sufficient to support the charge in light of all of the evidence adduced by the parties in this case.” Id. at 5.
Finally, the Board stated that the FAA’s reliance on Lengyel’s report was not unreasonable because opinion testimony of FAA inspectors is usually sufficient to establish violations. “[Presumably [it] would have been considered sufficient here had either the inspector taken these measuements [sic] himself or required that the mechanic who did take them use tools capable of indicating not just whether a limit or tolerance has been exceeded but also by how much.” Id. at 6.
These passages and the Board’s treatment of the evidence indicate that the Board failed to view the “record as a whole” when it determined that the FAA was substantially justified. The Board concluded that because the FAA had presented enough evidence to establish a violation, it was substantially justified in initiating and continuing the proceedings against Alphin. This is not the standard required by the EAJA, however. The Act expressly requires an examination into “the administrative record, as a whole.” Any lesser examination — such as viewing the government’s case in a vacuum, “excluding consideration of a respondent’s rebuttal case,” would defeat the purposes of the EAJA.
For example, if an agency were to bring an adversarial action against a private individual which was slightly stronger than frivolous, the agency would prevail if the respondent presented no defense. However, if the respondent successfully defended himself with overwhelming evidence, we would not deny his EAJA application solely because the agency would have prevailed had he not presented a defense. To the contrary, even if the agency would have prevailed in an uncontested proceeding, fees should be awarded if, in light of all the evidence known to the agency, its case was not substantially justified.
We also believe the NTSB erred in failing to consider whether the FAA was substantially justified in basing its order of suspension in part on allegations which the Board itself found to be without merit. For example, in its decision reversing the order of suspension, the Board disposed of several alleged deficiencies — such as noncompliance with service bulletins, an upside down valve spring, and a chrome cylinder— in a footnote. Yet, in its decision on the EAJA application the Board did not discuss these allegations. Although we agree with the Board that the cracked crankshaft alone validated the FAA’s decision to proceed against Alphin, we can not condone the shotgun approach used by the FAA. Simply because the cracked crankshaft, if proved, could have supported the suspension, the FAA is not entitled to tack on other meritless allegations. Each allegation had to be disproved by Alphin, because absent official notice that it was meritless, the allegation would not disprove itself.
We believe the NTSB should have examined Alphin’s application to determine if a partial award was appropriate, with respect to each allegation, Cinciarelli v. Reagan, 729 F.2d 801, 804-05 (D.C.Cir.1984); and in light of the knowledge known by the FAA during the various stages of the proceedings. Martin v. Lauer, 740 F.2d 36, 44 (D.C.Cir.1984).
In Cinciarelli this court stated that “[pjartial awards are contemplated within EAJA’s statutory scheme; if some but not all of the government’s defenses are substantially justified the prevailing party should be compensated for combatting those that are not.” 729 F.2d at 804-05. Similarly, in Martin we stated that:
We are convinced that many of the considerations expounded in Spencer [v. NLRB, 712 F.2d 539 (D.C.Cir.1983) ] favor separate determinations as to the substantial justification for the defendants’ position at each level. By judging the substantiality of the government’s position in the particular proceeding at issue, courts will encourage the government to determine whether to appeal based on the facts and law pertinent to that appeal. Further, this approach will induce the government to ‘evaluate carefully each of the various claims’ it might make on appeal and ‘assert only those that are substantially justified. The net result would be more sensitive and effectual promotion of the objectives of the EAJA.’
740 F.2d at 44 (footnotes omitted) (quoting Spencer v. NLRB, 712 F.2d at 557). Because the NTSB failed to evaluate the FAA’s position based on the record as a whole and because each allegation and each step of the proceedings was not separately evaluated we remand the case back to the NTSB for reconsideration.
On remand the Board should determine if the FAA “acted slightly more than reasonably,” Federal Election Com’n v. Rose, 806 F.2d 1081, 1087 (D.C.Cir.1986), when it initially sought to suspend Alphin’s Inspector’s Authorization Certificate and subsequently when it persisted despite knowing that Lengyel’s report was based largely on the opinion of an unknown mechanic who used improper gauges. Clearly, the FAA had an obligation to proceed against Alphin when it learned of the cracked crankshaft and this flaw alone validated the FAA’s decision to commence the proceeding, but as stated previously, the EAJA inquiry should not end there.
Chronology plays an important role in this case. As the case proceeded and the reliability of Lengyel’s report became questionable, it becomes less clear whether the FAA was substantially justified in basing its case on that report. The FAA may have been obligated to change its position within a reasonable time after learning that problems existed in the report. However, we are reluctant, on the record before us, to set forth an exact date after which the FAA no longer was substantially justified in pressing various theories, although a date may exist and should be pursued by the Board on remand. Further, what constitutes a reasonable time should initially be determined by the Board. We realize that this inquiry will be complicated by the fact that the AU and the NTSB heard the merits on more than one occasion, but the EAJA demands that each allegation made by the FAA be evaluated at each step of the proceedings when new or additional evidence indicated that its original allegations lacked substance or were in error. What was a substantially justified position prior to the initial hearing before the AU may not have been such years later when the NTSB finally reversed the order of suspension.
III. Conclusion
Because we believe the NTSB erred in considering Alphin’s EAJA application, we remand this case back to the Board for a more in depth evaluation of the FAA’s position at each step of the proceedings, to determine whether a partial award is appropriate, and the amount thereof.
. In its order granting Alphin’s petition for rehearing the NTSB stated, in part:
The asserted deficiencies in the powerplants at issue here involved internal engine components, chiefly in the valve train, which, according to the FAA inspector, exhibited wear in excess of maximum service limits. To reach such a determination, precise measurements, involving hundredths or even thousandths of an inch, must be made and compared with the specifications listed for the component in the overhaul manual for the engine. Although the FAA inspector did not himself make any such measurements on the two engines, he recorded the results of measurements taken by another mechanic during the disassembly process. In response to respondent’s efforts, at the hearing, to verify the basis for inspector’s determination that specific parts were out of tolerance or exceeded specifications, the inspector repeatedly stated that he and the mechanic had consulted the overhaul manual. Respondent’s petition asserts that the inspector’s testimony in this connection is contradicted by his subsequent testimony, in a state court trial, wherein the inspector stated that the manual was not available during the teardowns and that he did not know whether the mechanic had referred to the manual....
The inspector’s testimony in the state action raises a genuine issue as to the basis for, and the reliability of, his judgment that various deficiencies existed in the two engines. We are persuaded, in such circumstances, that a rehearing is warranted by the showing made in respondent’s petition.
(Footnotes omitted).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
The BUTTERICK COMPANY, Inc., a corporation, Petitioner, v. Honorable Hubert L. WILL, Respondent.
No. 13887.
United States Court of Appeals Seventh Circuit.
April 3, 1963.
Edward R. Adams, Sidney S. Gorham, Jr., Chicago, Ill., for petitioner.
John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for respondent.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.
KILEY, Circuit Judge.
This is a petition for mandamus to compel respondent to vacate an order denying petitioner’s motion to transfer a case to the Southern District of New York, and to compel entry of an order transferring the case. This court issued a rule to show cause, and respondent answered.
The underlying ease in the District Court, an action in equity, is Schiek v. The Butterick Company, Inc., a New York corporation with principal place of business in New York City, to enforce payment of dividends to Schiek, an Illinois citizen, who owns 200 of the 32,406 shares of the non-cumulative preferred stock. On May 11, 1961, Butterick’s board of directors decided not to pay a dividend due on July 1, 1961, and Schiek’s suit followed.
After briefs and affidavits for and against the motion to transfer were filed, respondent denied the motion, and the petition at bar followed.
It is fundamental that petitioner had the burden of showing a clear right to this extraordinary writ. Chemetron Corp. v. Perry, 295 F.2d 703, 704 (7th Cir., 1961). The question is whether respondent clearly abused his discretion in denying the motion to transfer.
28 U.S.C. § 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Butterick had the burden of making a “clear showing” that the “balance of conveniences” weighed in its favor. Koster v. Lumbermens Mutual Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). This court said in Chicago, Rock Island and Pacific Railroad Co. v. Igoe, 220 F.2d 299, 302 (7th Cir., 1955), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955) : “In considering the three factors prescribed by the statute, the District Court should bear in mind that in filing an action the-plaintiff is permitted to choose any proper forum and that the plaintiff’s choice of forum should not be lightly set aside.”
In Igoe, this court set out several factors to be considered. They include: the relative ease of access to sources of proof, availability of compulsory process-for, and expense of obtaining attendance-of, witnesses, and the condition of the-court calendar. It said a district court is-limited in exercising its “broad discretion” to consideration of the convenience of parties and witnesses and “the interests of justice,” but that it must apply the “three” factors. Clearly the court in Igoe did not intend to exclude other considerations falling within the term “in the interest of justice” because it stated that the term connotes conditions which further the administration of justice including the interest of the parties and of society.
Respondent in the proceeding at bar considered the elements set forth in § 1404(a) and by this court in Igoe. He weighed the factors presented by the affidavits and the balance of convenience and inconvenience of the parties, and in his Return in this court, he noted the difficulty of speculating before trial on what proof would eventually be produced. He thought that Butterick was better able to bear the inconvenience and expense of trial in Chicago than plaintiff was to bear the inconvenience and expense of trial in New York. He implied that the additional expense to plaintiff of prosecuting his suit in New York might result in his terminating the litigation, and noted that Butterick would not be precluded by economic considerations from proceeding in Chicago. He noted that plaintiff had selected an Illinois court, as his forum.
Respondent, following the guides of § 1404(a) and Igoe, gave reasons for his decision, and we cannot say that his denial of the motion to transfer was an abuse of discretion. Chemetron Corp. v. Perry, 295 F.2d 703 (7th Cir., 1961).
None of the cases cited are controlling in Butterick’s favor. Even if facts were on all fours, who can say, where the ground rules in Igoe were followed, that one judge’s exercise of discretion must conform to another’s? Even if we thought the court erred in the exercise of its discretion, mere error would not be enough for the extraordinary relief of mandamus, Sypert v. Miner, 266 F.2d 196, 199 (7th Cir., 1959), cert. denied, 361 U.S. 832, 80 S.Ct. 82, 4 L.Ed.2d 74 (1959), unless the error was so clear and arbitrary as to amount to an abuse of discretion. We have considered all points made by Butterick and have passed on all we deem necessary to this decision. No abuse of discretion is shown.
For the reasons given, the petition for writ of mandamus is denied.
. Originally filed in the Circuit Court of Cook County, defendant removed it to the Northern District of Illinois, Eastern Division.
. That case dealt with a motion to dismiss under the doctrine of forum non conveniens, before § 1404(a) was enacted. But as Judge Hand pointed out in Foster-Milburn Co. v. Knight, 181 F.2d 949 (2d Cir., 1950), that section was drafted in accordance with the doctrine of forum non conveniens.
. We are not disposed to grant the writ merely because respondent considered Butterick’s failure to raise the forum non conveniens issue in the Circuit Court of Cook County. He did not go beyond the factors in § 1404(a), limiting his discretion. He thought of Butterick’s failure to raise forum non conveniens in its bearing on the factors of convenience of the parties and witnesses.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_usc2sect
|
1951
|
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 second 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, Plaintiff-Appellee, v. Leon JENKINS, Defendant-Appellant.
No. 89-1532.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 17, 1989.
Decided April 27, 1990.
Rehearing and Rehearing En Banc Denied June 14, 1990.
Lynn A. Helland (argued), Detroit, Mich., for plaintiff-appellee.
Cornelius Pitts (argued), Detroit, Mich., for defendant-appellant.
Before KRUPANSKY and RYAN, Circuit Judges; and JOHNSTONE, Chief District Judge.
The Honorable Edward H. Johnstone, Chief United States District Judge for the Western District of Kentucky, sitting by designation.
RYAN, Circuit Judge.
This case is concerned with application of the double jeopardy provision of the fifth amendment of the federal Constitution to the retrial of criminal charges on which the jury was deadlocked in the first trial. There are two principal issues:
1) Whether the doctrine of collateral es-toppel, as incorporated in the fifth amendment bar against double jeopardy, precludes retrying the defendant upon criminal charges that resulted in a hung jury at a prior trial, where the wrongful conduct that is the basis for the unresolved charges was likewise the basis for separate charges of which the defendant was acquitted; and
2) Whether the district court abused its discretion in declaring a mistrial on the unresolved charges.
Our answer to both questions is no and, therefore, we shall affirm the district court’s judgment denying the defendant’s motion to dismiss the unresolved charges.
I.
Leon Jenkins is a judge of the 36th District Court of the state of Michigan. The jurisdiction of the 36th District Court includes the adjudication of civil and criminal traffic matters and some misdemeanor violations occurring in the City of Detroit.
In 1984, Sabah Dickow, a Detroit grocery store owner, informed the FBI that a 36th District Court judge was dismissing traffic tickets in exchange for money. The FBI began an undercover investigation. They installed electronic surveillance equipment in Dickow’s store and, from 1984 until 1986, recorded several conversations between defendant and Dickow regarding the exchange of money or property for the dismissal or other favorable treatment of traffic and other misdemeanor matters.
Following the FBI investigation, Judge Jenkins was charged in a ten-count indictment as follows:
Count I: Conspiracy to conduct Thirty-Sixth District Court business through a pattern of state law bribery (RICO conspiracy) 18 U.S.C. § 1962(d).
Count II: Conducting Thirty-Sixth District Court business through a pattern of state law bribery (substantive RICO) 18 U.S.C. § 1962(c).
Counts III-VI: Extortion in violation of the Hobbs Act, 18 U.S.C. § 1951.
Counts VII-X: Mail fraud, 18 U.S.C. § 1341.
The case proceeded to trial and, at the close of the government’s case, Count I, the RICO conspiracy charge, was dismissed at the government’s behest, and Counts VII through X, the mail fraud charges, were severed for separate disposition. That left for jury decision only Count II, the substantive RICO charge, and Counts III through VI, the four Hobbs Act extortion charges.
Count II, the RICO charge, 18 U.S.C. § 1962(c), listed ten separate violations of the state bribery laws, M.C.L. §§ 750.117, 750.118, as predicate offenses. Each predicate offense alleges a separate occasion on which Judge Jenkins corruptly accepted money or property in exchange for favorable disposition of pending court business. Counts III through VI, the Hobbs Act extortion counts, 18 U.S.C. § 1951, are based upon the same acts of bribery alleged in six of the ten predicate bribery offenses to the RICO charge.
In the course of a six-week trial, the government sought to prove that Judge Jenkins requested and received money, jewelry, a handgun, groceries, and other property in exchange for the dismissal and “clearing” of traffic violations and other misdemeanor charges pending in the 36th District Court in Detroit. After eight days of deliberation, the jury acquitted the defendant of the four Hobbs Act extortion charges but could not reach agreement on the RICO charge. The district court accepted the not guilty verdict on the Hobbs Act counts and declared a mistrial on the RICO count.
The defendant then moved to dismiss the mistried RICO count, claiming the government is collaterally estopped under the double jeopardy provision of the fifth amendment from reprosecuting him on the RICO charge because the predicate acts of bribery comprising the RICO allegations are the same acts of bribery of which he was acquitted under the Hobbs Act counts. He also contended that the district court abused its discretion in declaring a mistrial on the RICO charge, over his objection.
In rejecting the defendant’s collateral es-toppel argument, the district court relied primarily upon an assessment of its instructions to the jury. The court concluded that the collateral estoppel theory of double jeopardy does not preclude retrying the defendant on the RICO charges in this case because the Hobbs Act extortion charges contain an element, “inducement,” not contained in the state law bribery offenses charged as the predicate acts in the RICO count and, given the court’s alternative instructions on the meaning of “inducement,” it is impossible to say whether the jurors decided that Judge Jenkins did not “induce” the bribes in violation of the Hobbs Act, or was not bribed at all. If it were the former, the district court reasoned, double jeopardy, through collateral estoppel, would not bar retrial of the RICO charge. If it were the latter it would. But, since the district court was unable to determine which course the jury followed, it held that retrial was not barred. We agree with the district court’s conclusion but not with its reasoning.
The district court also rejected the claim of improper mistrial on the ground that the trial transcript showed that the defendant concurred in the mistrial ruling, and on the further ground that, in all events, the jury, after eight days of deliberation, was hopelessly deadlocked. We agree.
II. Collateral Estoppel
We turn first to the collateral estoppel claim, the more complex and difficult of the two questions presented. The issue may be restated a bit more precisely as follows:
Whether, on the particular facts of this case, acquittal of Hobbs Act extortion charges, 18 U.S.C. § 1951, precludes retrial of a RICO charge, 18 U.S.C. § 1962(c), previously prosecuted which alleges essentially the same acts of bribery as comprised the Hobbs Act charges but which, because of jury deadlock, is unresolved.
Collateral estoppel is included within the scope of the double jeopardy clause of the fifth amendment. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195-96, 25 L.Ed.2d 469 (1970). The doctrine precludes an ultimate issue of fact necessarily decided in a defendant’s favor in a prior criminal proceeding from being relitigated in a subsequent criminal action against the defendant. Id. at 443, 90 S.Ct. at 1194.
When, as here, the defendant relies on a general verdict of acquittal to assert collateral estoppel, the entire record must be examined to determine “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194. As this court said in United States v. Benton, 852 F.2d 1456, 1466 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 555, 102 L.Ed.2d 582 (1988):
Indeed, it is very difficult to determine the basis for an acquittal. An acquittal need not be based on any jury factual finding, as acquittal based on jury lenity can attest. Unless it can be said with definite assurances and by clear evidence, that the jury found a fact in the defendant’s favor, which is also a necessary element of the crime sought to be reprosecuted, Ashe will not assist a criminal defendant.
Application of the collateral estoppel doctrine is premised on the assumption that the jury acted rationally and found certain facts in reaching its verdict, United States v. Frazier, 880 F.2d 878, 883 (6th Cir.1989), and can apply in cases such as this in which the jury acquits on some charges in a multi-count indictment but cannot agree on others. Id.
In applying principles of collateral estop-pel our ultimate determination must be whether the “single rationally conceivable issue in dispute” was the issue on which the jury found for the defendants on each acquitted charge at the first trial. Ashe v. Swenson, 397 U.S. at 445, 90 S.Ct. at 1195.
Id. at 883-84. Before addressing the defendant’s argument directly, a brief look at the RICO statute and the Hobbs Act is in order.
A.
Conviction under RICO requires proof that defendant is associated with an enterprise which affects interstate commerce and conducted enterprise affairs through a pattern of racketeering activity, in this case bribery, in violation of state law. See, United States v. Sinito, 723 F.2d 1250, 1260 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984). Michigan law makes it a felony for a judicial officer to corruptly accept or receive a gift with the understanding that the gift will influence him in connection with the performance of his official duties. M.C.L. § 750.118.
Conviction under the Hobbs Act, as charged in this ease, requires proof of extortion and threatened interference with commerce. Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). In 18 U.S.C. § 1951(b)(2), extortion is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under col- or of official right.” (Emphasis added.) The first questions to be resolved are whether “inducement” is a required element under a Hobbs Act extortion charge when property is alleged to have been taken “under color of official right” and, if not, whether the jury in this case was so instructed.
B.
We note at the outset that a plausible argument can be made, although neither party makes it, that inducement is not an element of extortion under the Hobbs Act when the extortion is charged as obtaining property “under color of official right.”
The Hobbs Act, with appropriate ellipsis, provides, in pertinent part:
(a) Whoever... obstructs, delays or affects commerce or the movement of any article or commodity in commerce, by... extortion... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section—
(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
18 U.S.C. § 1951. (Emphasis added.)
Reading the statutory definition precisely as it is written, and paying attention to the punctuation, it appears that only “wrongful use of actual or threatened force, violence, or fear,...” must be “induced” in order to constitute extortion, since the “under color of official right” version of extortion is set apart from the “induced” clause that precedes it by a comma followed by the disjunctive “or.” Thus, a plausible reading of subsection (b)(2) is that extortion is the crime of obtaining property from another, with his consent, either
(1) “induced by wrongful use of actual or threatened force, violence, or fear,.... ”
or
(2) “under color of official right.”
If that is a correct reading of the definition of extortion in § 1951(b)(2), and if the district court in this case instructed the jury to that effect, defendant would be correct in his collateral estoppel double jeopardy argument because there would be no inducement element to “under color of official right” extortion. Consequently, there would be no distinction between bribery/extortion under the Hobbs Act and Michigan state law bribery alleged as predicate acts under the RICO count. If the jurors had been instructed in that way, they would not have been required to decide, under the Hobbs Act count, whether Judge Jenkins “induced” the bribes allegedly extorted.
But Judge Jenkins does not, even now, claim that the statute should be read as we have hypothecated, eliminating inducement as an element of “under color of official right” extortion. He argues, instead, that while inducement is indeed an element of “under color of official right” extortion under subsection (b)(2), the trial court’s instructions allowed the jury to find that mere passive acceptance of a bribe satisfied the inducement element in this case and, moreover, that United States v. Butler, 618 F.2d 411 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980), is authority for that proposition. What is more important, however, is that the district judge did not read the statute as we have suggested it might be read but, instead, instructed the jury explicitly and repeatedly that inducement is an element of the extortion charged in this case. And, the defendant did not object to the court’s instruction that inducement was an element the government was required to prove. Concerning the significance of the court’s instructions on inducement, we will have more to say later.
The defendant’s argument, reduced to its simplest, is that he cannot be retried for the RICO bribery charges because the Hobbs Act violations of which he was acquitted alleged, and the proofs adduced at trial addressed, the identical acts of bribery as were charged as predicate acts in the RICO count. The only contested issue at trial, defendant claims, was whether Judge Jenkins accepted and received bribes in exchange for the promise to dismiss, or the dismissal of, traffic tickets. Moreover, he argues, the trial court effectively removed “inducement” from the case as an element of the Hobbs Act extortion charges by instructing the jury that mere passive acceptance of a bribe is a violation of the Hobbs Act.
The government’s response is that while the acts of bribery alleged in the RICO and Hobbs Act counts are the same, conviction of the Hobbs Act extortion charges requires proof that the defendant induced the payment of the bribes alleged, an element not required for proof of the RICO bribery charge. The government also argues that the trial court instructed the jury that “inducement” is an element of the Hobbs Act the government was obligated to prove.
The defendant’s rejoinder is that while ordinarily inducement is an element of a Hobbs Act extortion violation, when the property extorted in the bribe is obtained “under color of official right” the inducement element is satisfied upon proof of mere acceptance of the bribe. For that proposition the defendant cites United States v. Butler, 618 F.2d 411 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). Therefore, the argument goes, when the jury acquitted Judge Jenkins of the Hobbs Act charges which alleged the “under color of official right” version of extortion, in which inducement is the equivalent of “mere acceptance of a bribe,” it necessarily decided that the defendant did not accept bribes and, therefore, retrial for the same conduct, under the RICO count, is foreclosed.
The defendant’s argument that “mere passive acceptance of a bribe” by one who obtains property “under color of official right” is a violation of the Hobbs Act without any additional proof of inducement is derived primarily from this court’s decision in Butler, and, secondarily, from the concluding sentence of that portion of the district court’s instructions to the jury in which it provided the jury with three examples of circumstances it might find constituted “inducement.”
We address first defendant’s reliance on Butler for his argument that proof of “mere acceptance of a bribe” by Judge Jenkins would have made proof of inducement unnecessary.
1.
The language in Butler upon which the defendant relies, although set forth in defendant’s brief without quotation and out of context, is the following:
[W]e hold that any wrongful use of a public official’s power for private personal gain is proscribed by the Hobbs Act.
618 F.2d at 419. And,
[The] contention that a distinction under the act is drawn between the voluntary payment of bribe, and extortion, by way of the inducement or initiation of such payment, is a technical overdrawn distinction which is in keeping with neither the legislative intent of the statute, nor recent case law holding that in cases of misuse of official power, bribery and extortion are not mutually exclusive. United States v. Harding, 563 F.2d 299 (6th Cir.1977), United States v. Kahn, 472 F.2d 272 (2d Cir.1973), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973), United States v. Hall, 536 F.2d 313 (10th Cir.1976), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976), United States v. Hathaway, 534 F.2d 386 (1st Cir.1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976).
Id. at 417.
We think the defendant reads too much into Butler, and we shall consider the case in some detail since it is the principal authority upon which the defendant relies.
Butler is, to be sure, a difficult opinion from which to extract a rule concerning the elements of extortion under the Hobbs Act. The defendants in that case, Butler and Hayden, were public officials charged, inter alia, under the Hobbs Act with “under color of official right” extortion; that is, accepting bribes. The Butler court was concerned, in the part of its opinion that concerns us, with whether the trial court erred in failing to instruct the jury that it must find that the defendants there “had ‘initiated’ or ‘induced’ the illicit transfer of payment.”
Rather than addressing the stated question directly, the Butler court considered at length whether, in order to prove “under color of official right” extortion under the. Hobbs Act, the government was required to prove, in addition, that the property was obtained through the use of “threatened force, violence, or fear.” Recall that the stated issue in Butler was whether failure to give an “inducement” instruction was error. In support of its negative answer to that question, the Butler court cited a number of cases from this circuit and others, but relied primarily on United States v. Harding, 563 F.2d 299 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978).
Harding, unlike Butler, is a case about force, coercion, and duress, not inducement. In Harding, the court considered whether, in order to obtain a conviction for extortion “under color of official right,” it is necessary to prove that the property was obtained not only under color of official right but also through the use of fear, coercion, or duress. The Harding court concluded that force, coercion, and duress are not elements of “under color of official right” extortion, and, since the point was not at issue, never addressed the question of whether inducement is. The Butler court cited a host of other cases which, likewise, are not “inducement” cases but which address, as Harding does, the question whether extortion “under color of official right” requires proof of coercion, force, or duress.
The Butler opinion, whose discussion shifts back and forth between “force, coercion and duress” on the one hand and “inducement” on the other, concluded, after considerable discussion that “a Hobbs Act conviction is sustainable upon a finding that property was unlawfully obtained either under color of official right or through force or duress.” 618 F.2d at 418. In what would appear to be its dispositive holding, the Butler court stated:
We then concluded that “[t]hus extortion defined as the wrongful obtaining of property under color of official right need not include the element of force or duress, and could include such activity as is commonly considered to be bribery.” Harding, 563 F.2d at 305.
618 F.2d at 420.
The court, in Butler, nowhere stated that inducement is not an element of “under color of official right” extortion, but did state that “extortion... under color of official right need not include the element of force or duress.” 618 F.2d at 420 (citing Harding). The Butler court further confused Hobbs Act “coercion and duress” with “inducement” by concluding its decision with a quotation from United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561 & 1562, 43 L.Ed.2d 775 (1975), which states that in an “under color of official right” extortion case,
it matters not whether the public official induces payments to perform his duties or not to perform his duties, or even, as here, to perform or not perform acts unrelated to his duties which can only be undertaken because of his official position. So long as the motivation for the payment focuses on the recipient’s office, the conduct falls within the ambit of 18 U.S.C. § 1951. That such conduct may also constitute “classic bribery” is not a relevant consideration.
618 F.2d at 420 (quoting Braasch, 505 F.2d at 151).
While the foregoing quotation from Braasch refers to “whether the public official induces payments,” Braasch, like the Harding case, and all of the other federal cases cited in Butler, is not a case having to do with whether inducement is an element of extortion. It is a case having to do with whether “fear, coercion, or force” are elements of extortion under color of official right. Not only did the Braasch court not hold that inducement is immaterial “under color of official right” extortion, to the contrary, it observed in a footnote that:
[Cjoercive extortion is not the only type outlawed by the Act. The other is inducing payoffs under color of official right.
505 F.2d at 151, n. 8. (Emphasis added.)
While Butler, an inducement case, discusses at length an issue not presented there and cites authorities from this court and other courts for propositions not at issue there, the opinion nevertheless can be read to conclude, given its affirmance of the lower court’s ruling, that inducement need not be pleaded, proved, or instructed upon in a Hobbs Act case alleging extortion “under color of official right”.
Despite the government’s concession, one reads Butler, and all the cases cited therein, in vain to find any analysis or authority for the conclusion that inducement is not an element of the form of extortion charged against Judge Jenkins in this case. Moreover, the clear weight of federal authority, including cases decided in the Second and Ninth Circuits subsequent to Butler, hold that inducement is indeed a necessary element of the form of extortion “under color of official right.” See United States v. Aguon, 851 F.2d 1158, 1162-67 (9th Cir.1988), United States v. O’Grady, 742 F.2d 682, 687 (2d Cir.1984), United States v. Bucci, 839 F.2d 825, 827 (1st Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988).
2.
In all events, even if Butler may properly be read to exclude inducement as an element of the extortion charged against Judge Jenkins, it does not assist him in this ease.
At trial, the government, understandably wary of assuming that Butler abolished the traditional requirement that inducement be pleaded and proved in “under color of official right” Hobbs Act extortion cases, proceeded on the assumption that inducement is always an element of extortion under the Hobbs Act. It specifically alleged that Judge Jenkins induced the payment of each of the bribes he allegedly received; it offered some evidence of inducement; and it argued to the jury that it had proved inducement. In addition, the government submitted proposed jury instructions to the district court specifically requesting that the jury be instructed that inducement is an element the government was required to prove beyond a reasonable doubt in the case. Had the government accepted the reading of Butler defendant now urges — but did not urge at trial — its burden to prove the Hobbs Act counts would have been one element lighter.
What is of greater importance, however, is that the district court assumed that inducement is an element of “under color of official right” extortion and charged the jury repeatedly, and at some length, that it could convict Judge Jenkins of the Hobbs Act violations only if it found, beyond a reasonable doubt, that he had induced the payment of the alleged bribes. The court’s charge to the jury included the following:
The Hobbs Act, Title 18, United States Code, Section 1951 provides that:
(a) Whoever in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce... [by obtaining property from another with that person’s consent induced under color of official right], or attempts... so to do,
is guilty of an offense against the United States.
(Emphasis added.)
And,
In order to establish the offense charged in counts III through VI the government must prove five essential elements.
FIRST: That the Defendant received the money or other property described in each of the counts, from the person identified in the count;
SECOND: That the money or property was not owed to the Defendant through the proper conduct of his office;
THIRD: That the Defendant induced or caused the giving of this property or money;
FOURTH: That the Defendant knew when he received the property or money that it was given to him because of his power and position as a judge of the 36th District Court; and
FIFTH: That as a result, interstate commerce was affected.
(Emphasis added.)
And,
As I told you earlier, in order to convict Defendant of any of the charges contained in counts III through VI, you must find not only that the Defendant received money or property from the persons named in those counts, but you must also find that the Defendant in some way induced the payments that he received.
Such inducement can take many forms and may be very subtle. You may find the necessary inducement if you find that defendant made any kind of request, solicitation, or demand for the property he received, and you may find that Defendant made such a request or demand if you find that he requested goods or services from the persons named in each count without offering to pay for them. You may also find inducement if you find that the Defendant promised or delivered some official action in exchange for the items given him. Even if you do not find that the Defendant promised or gave anything in return for any money and property that he received, and he did not make any request or demand to solicit the payments, you may still find inducement upon a finding of repeated acceptance over a period of time of substantial benefits by Defendant, that is, benefits of a nature and size which reasonably could affect Defendant’s exercise of his duties.
(Emphasis added.)
The defendant did not, at trial, object to the court’s charge that inducement was an element of the Hobbs Act counts. Indeed, a significant portion of the defense counsel’s argument to the jury was that Judge Jenkins did not induce payment of the money and other property given to him by informant Dickow but that Dickow pushed or forced the property on an innocent and unsuspecting Judge Jenkins, and that if any bribery occurred it was as a result of entrapment by the government.
It is incontestable that the two offenses submitted to the jury, the RICO bribery charge in Count II and the Hobbs Act extortion/bribery charges in Counts III through VI, were not the same offenses in that the Hobbs Act offenses required the jury to find that Judge Jenkins induced the payments he allegedly received in order to convict him. And, while the district court’s instructions, stating that “inducement can take many forms,” offered three conceivable scenarios in which the jury might have found the inducement and acknowledged that in two of them the inducement “may be very subtle,” the court, for all that, was defining “inducement” and requiring proof of inducement to convict. Therefore, even if the defendant is correct that Butler removed inducement as an element of the Hobbs Act, this case was not pleaded, tried, submitted to the jury, or decided under the apparent holding of Butler.
In the course of its eight days of deliberation, the jury considered two sets of charges: the RICO charge in which the state statutory bribery was at issue and the Hobbs Act charges in which state statutory bribery plus the element of inducement was at issue. The jurors acquitted the defendant of offenses that required proof of state law bribery plus the additional element of inducement and were deadlocked on the state law bribery charges laid under the RICO count which included no element of inducement. The offenses were not the same and there is every reason to conclude, upon examination of the whole record, that it was the government’s failure to prove inducement that resulted in the Hobbs Act acquittals. The government’s evidence on inducement was very weak. In addition, the defense counsel argued to the jury that inducement had not been proved and that the cash and property was forced on Judge Jenkins by informant Dickow.
Moreover, had the jurors acquitted Judge Jenkins of the Hobbs Act counts because they found the acts of bribery, as opposed to the inducement, had not been proved, they would likely have acquitted him of the RICO bribery count as well. They did not do so, and since they acquitted him of the offenses carrying the additional element and deadlocked on the RICO bribery charges it is logical to conclude the jurors decided the inducement element and not the bribery elements against the government.
We conclude, therefore, that the government is not collaterally estopped from retrying the defendant on the RICO bribery charges.
III. Mistrial Declaration
A.
When, after eight days of deliberation, the jury announced it had reached a verdict on the Hobbs Act charges but could not reach a verdict on the RICO charge, the court determined the jurors were hopelessly deadlocked, accepted the verdict of acquittal on the Hobbs Act counts, and declared a mistrial on the RICO count.
Defendant contends the district court abused its discretion in granting a mistrial over defendant’s objection without allowing him to make a record of his reasons for objecting.
“The prosecutor must demonstrate ‘manifest necessity’ for any mistrial declaration over the objection of the defendant.” Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978) (citing United States v. Perez, (22 U.S.) 9 Wheat 579, 580, 6 L.Ed. 165 (1824)). However, the trial judge has broad discretion in deciding whether or not there is “manifest necessity” when the mistrial is based on the judge’s belief that the jury is unable to reach a verdict. Id. 434 U.S. at 509, 98 S.Ct. at 832. “The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.” Arizona v. Washington, 434 U.S. at 510, 98 S.Ct. at 832.
Despite the defendant’s contention, our review of the record reveals that the defendant did not object to the grant of a mistrial on the RICO count but, rather, moved the court to grant his motion for directed verdict on the RICO count with the argument that the RICO bribery predicate offenses were the same acts of bribery alleged in the Hobbs Act counts of which the defendant had just been acquitted. When the court expressed its intention to declare a mistrial on the RICO count because the jury had deliberated to a deadlock, defense counsel said, “I don’t have any problems with that....” Thus, we conclude that defendant did not object to the declaration of a mistrial.
B.
Defendant also asserts that the court failed to comply with the factors set forth in Jones v. Hogg, 732 F.2d 53 (6th Cir.1984), when it declared a mistrial. The court in Jones held that several factors must be considered when determining whether a trial court abuses its discretion in declaring a mistrial. Id. at 56. The factors include:
1) a timely objection by the defendant;
2) the jury’s collective opinion that it cannot agree on a verdict;
3) the length of jury deliberations;
4) the length of the trial;
5) the complexity of the issues presented to the jury;
6) any proper communication which the judge has with the jury;
7) the effects of possible exhaustion and the impact which coercion of further deliberations might have on the verdict; and
8) the trial judge’s belief that additional prosecutions will result in hung juries.
Id. (Citations omitted.) The Jones court noted that the trial judge need not make express findings on the record, but if alternatives to mistrial exist then the trial court may have abused its discretion in declaring a mistrial. Id. at 56, n. 1. The Jones court then remanded the case for further proceedings because the trial record was so inadequate on the mistrial declaration that the court could not determine whether the trial court properly exercised its discretion in declaring mistrials on the defendant’s three prior prosecutions. Id. at 58. (Emphasis added.)
Here, the trial court gave reasons for granting a mistrial on the RICO count. It found the jury had been deliberating for eight days and was unable to reach a verdict on that count and stated it was satisfied that further deliberations would be pointless. At the hearing on defendant’s motion to dismiss, the district court stated that it had declared a mistrial only after it determined that the jurors were “hopelessly deadlocked.” The court explained the events leading up to the mistrial and found that defendant concurred in the declaration of mistrial and, therefore, the decision to declare a mistrial was not an abuse of discretion.
The trial court’s decision to declare a mistrial in a hung jury case is afforded great deference by the reviewing court since the trial court is in the best position to assess whether the jury can reach a just verdict if it continues to deliberate, Arizona v. Washington, 434 U.S. at 510, n. 28, 98 S.Ct. at 832-33, n. 28. On the record made below, we are satisfied that the trial court did not abuse its discretion.
C.
Finally, defendant contends that the court’s declaration of mistrial was an indication of the court’s bias and prejudice against defendant throughout the trial and was merely an attempt by the court to give the prosecution a second chance to try defendant. Defendant cites the footnote in Arizona in which the United States Supreme Court noted:
If the record reveals that the trial judge has failed to exercise the “sound discretion” entrusted to him, the reason for such deference by an appellate court disappears. Thus, if the trial judge acts for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling, close appellate scrutiny is appropriate.
434 U.S. at 510, n. 28, 98 S.Ct. at 833, n. 28.
After careful scrutiny of the record, we find no abuse of discretion or indication that the district court was biased or prejudiced against the defendant. The court’s comments to which the defendant makes reference, when viewed in their entirety, reflect instances during the six-week trial where the court and defense counsel disagreed, but they offer not the slightest indication of bias and prejudice.
IV.
Defendant also argues, as to the RICO count, that the court should have received the jury’s verdict as to all the predicate state bribery offenses upon which the jurors reached agreement as indicated on the special verdict form. However, defendant cites no authority for the proposition that a court may accept the jury’s responses to such a special verdict form when the jury states, through its foreperson, that it cannot reach a verdict on
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_casetyp1_7-3-2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Howard JAMISON, Administrator of the Estate of Leonard Palumbo, deceased, v. CITY OF PITTSBURGH, PENNSYLVANIA, a municipal corporation, Appellant.
No. 14343.
United States Court of Appeals Third Circuit.
Argued June 18, 1963.
Decided July 31, 1963.
Robert Engle, Asst. City Solicitor, Pittsburgh, Pa. (David W. Craig, City Solicitor, Pittsburgh, Pa., on the brief), for appellant.
James E. McLaughlin, Pittsburgh, Pa. (William C. O’Toole, McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and STALEY and FORMAN, Circuit Judges.
PER CURIAM.
An examination of the record and a consideration of the briefs and the oral arguments of the parties convinces us that the appeal is without merit and that the case has been decided correctly. Accordingly, the judgment will be affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_genresp2
|
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 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.
Charles E. LARSEN, Petitioner-Appellant, v. James K. FRAZIER; Attorney General, State of Oklahoma, Respondents-Appellees.
No. 87-1280.
United States Court of Appeals, Tenth Circuit.
Dec. 11, 1987.
Charles E. Larsen, pro se.
Robert A. Nance and Douglas B. Allen, Asst. Attys. Gen. (Robert H. Henry, Atty. Gen., of Okl., with them on the brief) Oklahoma City, Okl.; for Respondents-Appel-lees.
Before McKAY and BALDOCK, Circuit Judges, and GREENE, District Judge.
Honorable J. Thomas Greene, District Judge, United States District Court for the District of Utah, sitting by designation.
PER CURIAM.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument.
Petitioner appeals from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S. C. § 2254. We affirm.
In November, 1980, petitioner pled guilty to and was convicted of burglary pursuant to a plea bargain. In January, 1984, he was sentenced to ten years imprisonment after pleading guilty to unlawful use of a mislaid credit card after former conviction of a felony. The January, 1984, sentence was enhanced by the November, 1980, conviction. Petitioner did not file a direct criminal appeal from the conviction relating to the January, 1984, sentencing.
Petitioner, however, did file an application for state post-conviction relief in the District Court of Oklahoma County attacking the November, 1980, conviction. Petitioner alleged, among other things, that his plea bargain was null and void as a violation of Okla. Const, art. XXIII, § 8. Okla. Const, art. XXIII, § 8 provides: “Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void.” Without specific discussion of the allegation, the District Court of Oklahoma County denied relief and concluded petitioner voluntarily and knowingly waived his rights and pled guilty. The Oklahoma Court of Criminal Appeals affirmed and stated that it had examined the application filed in the Oklahoma district court and found that even if petitioner’s statements were true, he had failed to demonstrate that he was entitled to any relief.
Petitioner then filed a petition for habeas corpus relief in the district court alleging, among other things, that his plea bargain was void. The district court refused to review the allegation, finding that it contained no assertion of a violation of the constitution or laws of the United States.
This court reversed and remanded in Larsen v. Frazier, Unpublished No. 86-1593 (10th Cir. filed January 6,1987). This court determined that petitioner had alleged a violation of due process and equal protection guaranteed by the Fourteenth Amendment. More specifically, this court determined that an allegation that a state’s refusal to apply the protections of its own constitution is a denial of fundamental fairness guaranteed by the Due Process Clause.
Upon reconsideration of the merits of the claim, the district court found that the Oklahoma courts have never construed the Oklahoma Constitution to prohibit guilty pleas, plea bargains, or the waiver of constitutional rights associated with the plea process. The district court concluded petitioner can make no argument on the law or the facts in support of his claim for relief. Petitioner appealed.
The validity of guilty pleas and plea bargains is a matter of state law. We will generally follow the interpretation of the laws of a state by its highest deciding court except where the interpretation is inconsistent with fundamental principles of liberty and justice. See Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984); Tyrrell v. Crouse, 422 F.2d 852, 853 (10th Cir.1970); see also Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488, 96 S.Ct. 2308, 1312, 49 L.Ed.2d 1 (1976).
In this case, the Oklahoma Court of Criminal Appeals had the opportunity to review the constitutionality of the plea bargain on the merits. In summarily denying relief, the Court of Criminal Appeals determined that plea bargains are valid and are not in violation of Okla. Const, art. XXIII, § 8. Because no fundamental principles of liberty or justice are involved, we conclude that plea bargains are valid in Oklahoma and are not in violation of Okla. Const, art. XXIII, § 8.
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
The mandate shall issue forthwith.
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_respondent
|
027
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
MATLES v. UNITED STATES.
No. 378.
Decided April 7, 1958.
Frank J. Donner, Arthur Kinoy and Marshall Perlin for petitioner in No. 378.
Richard J. Burke for petitioner in No. 450.
Edward Bennett Williams and Morris Shilensky for petitioner in No. 494.
Solicitor General Rankin, Warren Olney, III, then Assistant Attorney General, Beatrice Rosenberg and /. F. Bishop for the United States in Nos. 378 and 450. Mr. Rankin, Acting Assistant Attorney General McLean, Miss Rosenberg and Eugene L. Grimm for the United States iii No. 494.
Together with No. 450, Lucchese v. United States, and No. 494, Costello v. United States, also on petitions for writs of certiorari to the same Court.
Per Curiam.
The petitions for writs of certiorari are granted. In No. 378 the judgment of the Court of Appeals for the Second Circuit is reversed and the case is remanded to the District Court with directions to vacate the order holding the petitioner in contempt and to dismiss the complaint. In Nos. 450 and 494 the judgments of the Court of Appeals for the Second Circuit are reversed and the cases are remanded to the District Court with directions to dismiss the complaints. An affidavit showing good cause is a prerequisite to the initiation of denaturalization proceedings. The affidavit must be filed with the complaint when the proceedings are instituted. United States v. Zueca, 351 U. S. 91, 99-100.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
The COUNTY OF SULLIVAN, N. Y. and the Sullivan County Airport Commission, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, and The State of New York and Mohawk Airlines, Inc., Intervenors.
No. 467, Docket 35585.
United States Court of Appeals, Second Circuit.
Argued Dec. 3, 1970.
Decided Jan. 4, 1971.
Don W. Crockett, Washington, D. C. (Robert M. Beckman, Washington, D. C., Carl P. Goldstein, Atty., County of Sullivan, Montieello, N. Y., and Theodore Drew, Asst. Sullivan County Atty., Montieello, N. Y., of counsel), for petitioners.
J. Michael Roach, Atty., Civil Aeronautics Board, Washington, D. C. (Richard W. McLaren, Asst. Atty. Gen., Gregory B. Hovendon, Atty., Dept, of Justice, Washington, D. C., R. Tenney Johnson, Gen. Counsel, Civil Aeronautics Board, Washington, D. C., O. D. Ózment, Deputy Gen. Counsel, Warren L. Sharf-man, Associate Gen. Counsel, Litigation and Research, and Robert L. Toomey, Atty., Civil Aeronautics Board, Washington, D. C., of counsel), for respondent.
Philip Weinberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., of counsel), for intervenor State of New York.
Raymond J. Rasenberger, Washington, D. C. (Frank J. Costello, Zuckert, Scoutt & Rasenberger, Washington, D. C., of counsel), for intervenor Mohawk Airlines, Inc.
Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
This petition to review an order of the Civil Aeronautics Board concerns the rendition of air service by Mohawk Airlines, Inc. to Liberty/Monticello in Sullivan County, New York, an important resort area in the Catskill Mountains.
Mohawk’s authority to serve Liberty/Monticello, sometimes hereafter referred to as the Sullivan County Airport, dates back to 1952 when the Board granted certificate authority to Mohawk’s corporate predecessor, Robinson Air Corp., Certificate Renewal, 15 C.A. B. 940, 954-955 (1952). Because of the lack of a suitable airport, no service by fixed wing aircraft had been rendered, and a helicopter experiment proved unprofitable. In 1964, with such an airport finally in prospect, the Civil Aeronautics Board renewed this authority for a period terminating October 26, 1967. Mohawk Airlines, Inc., “Use It or Lose It” Investigation, 40 C.A.B. 393, 41 C.A.B. 263 (1964). On April 26, 1967, Mohawk made an application for a further renewal of authority to serve Liberty/Monticello “for three years from the present expiration date” and also to add it as an intermediate point on the carrier’s Boston-Cleveland and Boston-Pittsburgh routes. In one paragraph of the application Mohawk served notice that it “intends to rely upon section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558, and Part 377 of the Board’s Special Regulations.” The prayer for relief read as follows:
Wherefore, Mohawk prays that the Board amend its existing certificate of public convenience and necessity for Route 94 so as to authorize Mohawk to engage in scheduled air transportation as an air carrier of persons, property, and mail as herein-above applied for until October 26, 1970. Mohawk also prays for such other, further, and different relief as the Board may deem appropriate.
The last sentence of § 9(b) of the APA, now 5 U.S.C. § 558(c), provides:
When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.
Mohawk’s renewal application thus effected an extension of its Liberty/Monti-eello authorization beyond October 26, 1967, even though the Board had not acted thereon. The agency approved Mohawk’s failure to institute service until a suitable airport was completed. This was ultimately done, at a cost of over $7 million of federal, state and county funds. Mohawk began service on July 2, 1969. In April, 1970, it informed Sullivan County of its intention to allow the service to lapse on October 26, 1970, when it considered that the renewal of its authority achieved by the combined effect of its 1967 application and the last sentence of § 9(b) of the APA would expire.
The notification had the impact that must have been anticipated. On May 4, 1970, Sullivan County and its Airport Commission filed an application with the Board, apparently under § 401(g) of the Federal Aviation Act, to extend Mohawk’s authority to serve Liberty./Monticello and moved for an immediate hearing. When the Board got around to this on July 16, more than ten weeks later, it granted the motion and set the application for expedited hearing. Although Examiner Fitzmaurice then proceeded with commendable speed, it became apparent by mid-August that the proceeding would not be concluded by October 26, and the Sullivan interests moved, on August 13, that the Board direet Mohawk to continue service until final determination of the § 401(g) proceeding. On September 23, the Board issued an order observing that, for various reasons there stated, “it would be undesirable for Mohawk to discontinue its services during the pendency of the proceeding,” and granted an exemption under § 416(b) permitting the airline to continue to serve Liberty/Montieello until 60 days after final decision in the § 401(g) case. After various conversations, Mohawk informed the Sullivan officials and the Board on October 20 that it did not intend to avail itself of the permission given by the exemption but would discontinue serving the Sullivan County Airport on October 26 when it considered its obligations under the certificate to end.
This led to the motion resulting in the order here under review. The Sullivan authorities promptly made a further application to the Board, arguing that § 9(b) of the APA compelled Mohawk to furnish service until its 1967 renewal application was finally determined, and moving for an order to that end. On October 30 the Board denied the motion on the ground that it was powerless to require Mohawk to render servcie except as a possible outcome of the § 401(g) proceeding. Meanwhile Mohawk had discontinued service on October 26, and Examiner Fitzmaurice had rendered an initial decision in the § 401(g) case adverse to the Sullivan authorities. On November 18, the latter sought discretionary review of the Examiner’s decision under the Board’s Rule 28, 14 C.F. R. § 302.28. In addition, they had also instituted an action for a declaratory judgment and an injunction in the District Court for the Southern District of New York. It was agreed that proceedings there should be suspended pending review of the Board’s October 30 order in this court. The Sullivan authorities filed a petition for such review on November 9, which we heard on December 3.
If Mohawk’s renewal application had been for a period expiring October 26, 1970, simpliciter, the correctness of the Board’s decision would be so clear as not to require extended discussion. The final sentence of § 9(b) says that once a timely and sufficient application for renewal or a new license has been made, no “license with reference to an activity of a continuing nature” shall expire until that application has been finally determined. It does not say that an application for a renewal or a new license imposes an obligation beyond the terms sought, which the applicant does not wish to assume. If the words themselves left any doubt what the sentence meant, the context would remove it. The whole thrust of § 9(b) is to protect applicants and licensees, not to impose unsought obligations upon them. The first sentence directs that license applications shall be heard “within a reasonable time.” The second sentence protects against suspension or revocation unless written notice of the objectionable conduct is given to the licensee and he is afforded an opportunity to comply with all lawful requirements. The final sentence completes the circle by providing that if the licensee has timely sought renewal, the valuable rights conferred by a license for a limited term shall not be lost simply because the agency has not managed to decide the application before expiration of the existing license. As Mr. Justice Burton said, dissenting in Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R.R., 353 U.S. 436, 444-445, 77 S.Ct. 999, 1005, 1 L.Ed.2d 963 (1957), in a passage with which the majority did not express disagreement:
The policy behind the third sentence of § .9(b) is that of protecting those persons who already have regularly issued licenses from the serious hardships occasioned both to them and to the public by expiration of a license before the agency finds time to pass upon its renewal.
S.ee also Attorney General’s Manual on the Administrative Procedure Act 91-92 (1947).
It may well be, although we do not decide the point, that when the holder of a certificate limited in time applies for a renewal for a fixed period, a literal application of the final sentence of § 9(b) of the APA and the public interest considerations mentioned by Mr. Justice Burton would prevent his withdrawing the application or ceasing service before the stipulated date except on authorization granted pursuant to § 401(g) or (j). But it would be stretching the language of the last sentence of § 9(b) outside its reasonable meaning or intended purpose to give it the effect of prolonging through an indefinite period of administrative inaction the authorization of an unwilling licensee beyond the fixed period for which he has sought renewal.
The Sullivan authorities argue that even if that should be so, a different result is required here because of the second sentence in the renewal application, usually dubbed the “catchall” clause, in which Mohawk prayed “for such other, further, and different relief as the Board may deem appropriate.” Examination of the Board’s files would doubtless reveal such precautionary language in certificate applications going back to the agency’s earliest days. The draftsmen of thirty years ago were very likely following equity pleading practice, see, e. g., Form 17 to F.R.Civ.P., without any particularly definite idea what they meant the clause to accomplish. Other practitioners followed their example for safety’s sake. Gradually certain uses did emerge. If a person applied for a permanent certificate but, after hearing, was given a temporary one, the “catchall” would surely protect against an adverse party’s claim of not having been put on proper notice. See, e. g., Salt Lake City—Rapid City Extension Case, 16 C.A.B. 594, 600 (1952). Whether the catchall clause would oblige the applicant to accept such a certificate or would require an applicant for a short-term certificate to accept one of longer duration are different questions, which do not seem to have arisen. An even more important usefulness was in matters of routing and points of service. The Board might decide to grant certain points sought by an applicant but not others, to arrange them in a different way, to impose restrictions against nonstop or turn-around service, or to authorize service to certain points not sought but nevertheless accepted with varying degrees of enthusiasm. The value of a catchall clause' in empowering the Board to authorize routes not specifically requested and in protecting against an adverse party’s claim of lack of notice when the Board gave such an authorization was impressively demonstrated by CAB v. State Airlines, Inc., 338 U.S. 572, 575-577, 70 S.Ct. 379, 94 L.Ed. 353 (1950). Again the issue whether a mere catchall clause would require an applicant to serve an unrequested stop which the Board included in its certificate seems not to have arisen; the applicant in North Central Airlines, Inc. v. CAB, 281 F.2d 18, 108 U.S.App.D.C. 185 (D.C.Cir. 1960), had gone considerably beyond the stereotyped phraseolgy in indicating willingness to serve additional unspecified cities..
The Board would scarcely have been justified and was much less required to read the catchall clause of Mohawk’s 1967 renewal application as expanding timewise the carrier’s extremely specific request for renewal of its authorization to serve Liberty/Monticello on segments 1 and 2 “for three years from the present expiration date.” The catchall clause could scarcely turn such an explicit declaration of desire to serve for a limited period even without a sifting of the facts into an indication of willingness to serve for whatever period the Board might choose to take to determine the renewal application. Mohawk expected that before the end of the specified term it would have had experience in operating to and from the Sullivan County Airport, which was scheduled for completion by June of 1968, and the proof of the pudding would then be in the eating. Mohawk has now had over a year’s experience in serving Liberty/Monticello and considers it a losing proposition. Whatever effect the catchall clause might have had if the Board had acted on the renewal application before October 26, 1970, and had decided to continue the authority beyond that date, or whatever bearing it may have on the Board’s power to force Liberty/Monticello upon Mohawk under § 401(g) if the agency should disagree with its Trial Examiner as to the conclusions to be drawn from the evidence developed in the case brought by Sullivan County under that section, issues on which we intimate no opinion, it did not have the effect of continuing Mohawk’s obligation to serve Liberty/Monticello after October 26, 1970, without an agency determination of any sort.
We therefore deny the petition to review. We also deny a motion for a mandatory injunction to direct the Board to compel continued service by Mohawk. This seems only to be asking the same thing in another way which would pose additional problems.
. Liberty/Monticello was designated as an intermediate point in segment 1 between New York, N. Y./Newark, N. J., and Buffalo and Niagara Falls, N. Y., and on segment 2 between New York, N. Y./Newark, N. J. and northern New York points. The remainder of these two authorizations was permanent.
. The County asserts the airport was “designed to meet all of Mohawk’s requirements.” Mohawk says the airport, especially the large terminal building, went far beyond them.
. If it becomes apparent that the agency will not complete proceedings before the stipulated date and the licensee wishes the license to continue, presumably he can amend his renewal application or file a new one. See 14 C.F.R. § 377.10(c).
. As Mr. Justice Reed pointed out in the opinion in that case, 281 F.2d at 21, the problem is related to but somewhat different from the issue of the Board’s power under § 401(g) [§ 401(h) of the earlier Civil Aeronautics Act of 1938, 52 Stat. 973, 989] to amend an existing certificate to include points the carrier does not wish to serve.
. Examiner Fitzmaurice’s initial decision contains other material indicating Mohawk’s scepticism in early 1967 concerning the Sullivan County operation.
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Norman C. GRAY, Jr., et al., Appellants, v. J. Shane CREAMER, Attorney General of the Commonwealth of Pennsylvania, et al.
No. 71-1714.
United States Court of Appeals, Third Circuit.
Argued June 13, 1972.
Decided Aug. 14, 1972.
Ronald A. Berlin, Pittsburgh, Pa., for appellants.
Frederick N. Frank, Deputy Atty. Gen., J. Shane Creamer, Atty. Gen., Pittsburgh, Pa., for appellees.
Before SEITZ, Chief Judge, and VAN DUSEN and ADAMS, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
On May 13, 1971, plaintiffs Gray, Harris, Moore, Holden and Sowers, prisoners or former prisoners at the State Correctional Institution at Pittsburgh (the “Western Penitentiary”), brought the instant civil rights action on behalf of themselves and all others similarly situated to secure redress for various allegedly unconstitutional actions by the defendants. Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1343, 2201 and 42 U.S.C. §§ 1983, 1985. Plaintiffs allege that they had been deprived of rights guaranteed to them by the First, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article One, Section Seven, of the Constitution of the Commonwealth of Pennsylvania, P.S.; both injunctive and declaratory relief were requested. On May 25, 1971, at a “final pretrial hearing” the defendants presented a “Motion to Dismiss, Presenting Defenses of Failure to State a Claim and of Improperly Bringing a Class Action,” and by order of June 21, 1971, the district court granted this Motion. See Gray v. Creamer, 329 F.Supp. 418 (W.D.Pa.1971). For the reasons to be stated, we reverse and remand to the district court 'for further proceedings consistent withrthis opinion.
I.
We note at the outset that a motion to dismiss a complaint, including a prisoner’s civil rights complaint, for failure to state a claim upon which relief can be granted is subject to a very strict standard. In Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the Court reviewed a district court grant of such a motion, which grant had been affirmed by the Court of Appeals on the ground that prison officials are vested with “wide discretion” in disciplinary matters. The Court reversed:
“Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” 404 U.S. at 520, 92 S.Ct. at 595.
See 2A Moore’s Federal Practice ft 12.08 at 2271-74 (1968):
“[A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” (Emphasis in original.)
Thus, the district court’s grant of defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted was proper only if, taking as true all the allegations in the complaint and drawing the inferences most favorable to the plaintiffs, it appeared beyond doubt that plaintiffs were entitled to no relief. See, e. g., Haines v. Kerner, supra; Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971); Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966); cf. Long v. Parker, 390 F.2d 816, 821 (3d Cir. 1968). It is with this standard in mind that we turn to an examination of the facts alleged in the complaint.
II.
The instant suit apparently arises from the publication of a prison news letter called Vibrations and the reaction of the prison authorities to this news letter and to the prisoners connected with it. According to the complaint, Vibrations was established in December 1970 by a group of 12 prisoners, including plaintiffs Gray, Harris, Moore and Sowers, with the encouragement of the then-acting Director of Treatment at Western Penitentiary. This news letter was intended to inform both the general public and the administration of Western Penitentiary, and to this end it contained a wide variety of information, including poems, astrology forecasts, informational articles or essays, religious expressions, lists of prisoners having illnesses, letters to the editors, statements of editorial policy, and requests for supplies needed by the news letter. Vibrations was published weekly beginning on Christmas Eve 1970, and by April 1971 at least 12,000 copies had been mailed outside of Western Penitentiary and numerous copies circulated within the prison. Plaintiffs alleged that the publication of Vibrations was of great benefit to the prisoners themselves, the prison administration, and the citizens outside the prison. Plaintiffs further alleged that the Vibrations staff exercised stringent self-censorship with the result that no material was published that could be interpreted to be obscene, libelous, or dangerous to prison administration, discipline, and security.
In April 1971, relationships between the Vibrations staff and the prison administration deteriorated markedly. On April 19, 1971, after several meetings between individual defendants and members of the Vibrations staff, including plaintiff Gray, the Vibrations office at the Western Penitentiary was padlocked by order of defendants, and certain materials found in the office were confiscated and. presumably destroyed. Since that time defendants have made it impossible for Vibrations to be published.
Further, according to the complaint, beginning on April 19, 1971, the plaintiffs and members of the class they represent were transferred to other prisons, placed in punitive and administrative segregation, suspended from jobs they has held and subjected to physical and verbal abuse from guards and the confiscation of their personal belongings. Specifically plaintiffs alleged that on or after April 19, 1971, defendants caused certain prisoners, including plaintiffs Moore and Holden, to be placed in either punitive segregation or segregation at the Western Penitentiary, and that the prisoners so isolated were neither charged with a violation of prison regulations nor given a hearing. Further, it was alleged that during a two-week period subsequent to April 19, 1971, defendants caused at least ten prisoners, including plaintiffs Gray, Moore and Harris, to be transferred to other penal institutions in the state without being given a hearing nor charged with any violation of prison regulations prior to the transfers. Plaintiffs alleged that some of the prisoners so transferred, including plaintiffs Gray, Moore and Harris, were placed in punitive segregation in the institutions to which they were transferred without being charged with a violation of any penal regulation and without being granted a hearing.
Plaintiffs also alleged that letters written to various named plaintiffs were never received by them and that some outgoing mail sent by prisoners was not forwarded by the prison officials, which actions were allegedly in violation of a directive issued by defendant Sielaff. It was further alleged that the defendants do not permit certain publications to be delivered to plaintiffs and the class they represent. Finally, plaintiffs alleged that a prison regulation and/or practice effective since April 19, 1971, has arbitrarily restricted the number of prisoners who. can lawfully congregate to an unreasonably small number.
III.
It remains true that “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). “Some deprivations are a necessary and expected result of being an inmate of a penal institution, which institution must provide for the custody, maintenance, discipline and, optimistically, rehabilitation of those who have violated the laws of the sovereign.” Jackson v. Godwin, 400 F.2d 529, 532 (5th Cir. 1968). Furthermore, the task of determining the rights and deprivations of state prisoners falls principally upon the prison authorities, whose judgment in the exercise of this important responsibility the federal courts will not ordinarily question. As this court has recently stated :
“The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandably reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials.” Gittle-macker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970).
The fact that the federal courts will normally defer to the judgment of the state prison authorities on matters relating to the treatment of prisoners is, however, not to say.that such prisoners are bereft of all constitutional rights or that the federal courts will refuse to intervene to protect those rights which the prisoner retains. “Acceptance of the fact that incarceration, because of inherent administrative problems, may necessitate the withdrawal of many rights and privileges does not preclude recognition by the courts of a duty to protect the prisoner from unlawful and onerous treatment of a nature that, of itself, adds punitive measures to those legally meted out by the court.” Jackson v. Godwin, supra, 400 F.2d at 532. The Supreme Court has recently summarized the federal courts’ duty in this area as follows:
“Federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for the redress of grievances which, of course, includes ‘access of prisoners to the courts for the purpose of presenting their complaints.’ ” Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (Order of March 20, 1972.) (per curiam).
See, e. g., Owens v. Brierley, 452 F.2d 640, 642 (3d Cir. 1971).
Thus, when a state prisoner makes specific allegations of unconstitutional treatment, the federal courts must become involved in the administration of the prison system to the limited extent of determining (1) whether the inmate is entitled under the federal Constitution to the particular right claimed — a determination which often involves “a process of weighing and balancing conflicting interests,” Gittlemacker v. Prasse, 428 F.2d at 4 — (2) if so, whether such right has been infringed in the case before it, and (3) if a constitutional right has been infringed, what remedy is appropriate.
IV.
In the instant case plaintiffs in their complaint asserted several constitutional rights which it was alleged the defendants had abridged. We find it sufficient for purposes of this appeal to discuss in detail only the claim that plaintiffs’ Fourteenth Amendment right to due process of law was abridged by the circumstances of their transfers from the general prison population to “segregation” or “punitive segregation.” It is, of course, clear beyond doubt that a state prison inmate continues to receive the protection of the due process clause of the Fourteenth Amendment,. See, e. g., Washington v. Lee, 263 F.Supp. 327, 331 (M.D. Ala.1966), aff’d per curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1967):
“ [I]t is well established that prisoners do not lose all their constitutional rights and that the Due Process and Equal Protection Clause of the Fourteenth Amendment follow them into prison and protect them there from unconstitutional action on the part of prison authorities carried out under color of state law.”
See also Jackson v. Bishop, 404 F.2d 571, 576 (8th Cir. 1968) (Blackmun, Cir. J.). Plaintiffs alleged in their complaint that they and members of the class they represent were transferred into solitary confinement or “punitive segregation” without being either charged with a breach of prison regulations or given a hearing. The district court dismissed this charge in the complaint on the ground that “there is no constitutional right infringed by placing a state penal inmate in solitary confinement or in administrative segregation,” 329 F.Supp. at 420, suggesting that “the right to take such action is equivalent to the right to administer discipline, maintain safety, or security.” 329 F.Supp. at 421. The Government has argued in support of the district court’s dismissal of this count that “decisions concerning punitive segregation or transfer of state prisoners are wholly within the discretion of prison officials and are not a proper subject for judicial interference.” Brief for appellees at 16. We do not consider it appropriate, on review of the district court grant of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, to suggest what may be the precise requirements of the due process clause in this case,- since the determination of “what process is due” will necessarily depend upon facts to be developed in the district court on remand. See Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960):
“[A]s a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden of that proceeding, are all considerations which must be taken into account.”
But we do hold that the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances not evident in the pleadings, meet minimal due process requirements. See Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971):
“If substantial deprivations are to be visited upon a prisoner, it is wise that such action should at least be premised on facts rationally determined. This is not a concept without meaning. In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him, . and afforded a reasonable opportunity to explain his actions.” (Citations and footnote omitted.)
This decision is consistent with a great number of federal court decisions indicating that the Fourteenth Amendment to the United States Constitution requires that certain safeguards accompany the imposition by state prison authorities of substantial punishment. See Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971); Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Alverez v. Turner, 422 F.2d 214, 220 (10th Cir. 1970); Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966); Krause v. Schmidt, 341 F. Supp. 1001 (W.D.Wis.1972); Landman v. Royster, 333 F.Supp. 621, 651-656 (E.D.Va.1971); Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La.1971), on hearing after remand, 435 F.2d 125 (5th Cir. 1970); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971); Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971); Rhem v. McGrath, 326 F.Supp. 681 (S.D.N.Y.1971); Meola v. Fitzpatrick, 322 F.Supp. 878, 885-886 (D.Mass.1971); Wright v. McMann, 321 F.Supp. 127 (N.D.N.Y.1970), on hearing after remand, 387 F.2d 519 (2d Cir. 1967); Carothers v. Follette, 314 F.Supp. 1014 (E.D.N.Y.1970); Kritsky v. McGinnis, 313 F.Supp. 1247 (N.D.N.Y.1970); Cf. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971).
V.
Plaintiffs’ complaint also contained allegations of the deprivation of other constitutional rights. Since this case is to be remanded to the district court for consideration on the merits, at which time the allegations in the complaint will be more fully developed, we make the following observations:
1. Plaintiffs alleged that their rights under the First and Fourteenth Amendments to the Constitution were violated by the actions of the defendants in unlawfully shutting down the news letter, Vibrations, by the transfer of prisoners to other penal institutions and/or to varying degrees of isolation, by unlawful physical and verbal harassment, and by the unlawful confiscation of various personal belongings bearing a significant relationship to constitutionally protected freedoms. We note that even though a state prisoner may have no constitutional right to distribute his materials within the prison, see Sostre v. McGinnis, supra, 442 F.2d at 190-191, 202, and n. 48, he does have a right to be free of discriminatory punishment inflicted solely because of his beliefs. As the Second Circuit observed in Sostre v. McGinnis, supra at 202-203:
“To sanction such punishment, even though in the judgment of prison officials the writings were ‘inflammatory’ and ‘racist,’ as in the instant case, would permit prison authorities to manipulate and crush thoughts under the guise of regulation. The intimidating threat of future similar punishment would chill a wide range of prisoner expression, not limited to that expression which Follette might in fact deem dangerous enough to discipline. The danger of undetected discriminatory punishment of ideas is particularly acute in the absence of statutory standards to guide the exercise of Follette’s discretion.”
See Howard v. Smyth, 365 F.2d 428, 430-431 (4th Cir. 1966); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961). Whether this constitutional right of plaintiffs has been violated by defendants is, of course, a matter, among others, for the district court’s consideration on remand.
2. Plaintiffs further alleged that defendants have deprived them of rights guaranteed by the First and Fourteenth Amendments by unlawfully censoring and interfering with their mail. It is abundantly clear that the state prison authorities do not possess unfettered discretion to censor or restrict an inmate’s mail in the name of preserving order, safety and discipline. See, e. g., Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Owens v. Brierley, 452 F.2d 640 (3d Cir. 1971); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Sostre v. McGinnis, 442 F.2d 178, 200-201 (2d Cir. 1971), and cases cited; Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); Long v. Parker, 390 F.2d 816, 822 (3d Cir. 1968). The scope of the constitutional rights to which the plaintiffs were entitled in this area and the extent to which such rights may have been abridged by defendants are matters to be considered in the first instance by the district court on the basis of the facts which are developed on these issues.
3. Plaintiffs also alleged that they were subjected by defendants to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments, by their confinement in punitive or administrative segregation, in which they were allegedly “not permitted out of their cells for any period of time, . . . deprived of personal belongings, visits, and other rights afforded the general prison population.” Complaint, f[ 39. We note that although many federal courts have declared that commitment to solitary confinement does not, in itself, violate the Eighth Amendment, certain particular practices in such confinement have been found to constitute cruel and unusual punishment. See, e. g., Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), aff’g 309 F.Supp. 362 (E.D.Ark.1970) (Arkansas State Penitentiary System involving a trustee system, confinement of large numbers of men in open barracks, bad conditions in isolation cells, and the absence of a meaningful rehabilitation program held cruel and unusual punishment); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (confinement in dirty cell encrusted with human excretion without clothing or rudimentary hygienic implements under threat of beatings held cruel and unusual punishment); Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La.1971), after hearing on remand, 435 F.2d 125 (5th Cir. 1970) (confinement of prisoners in cell for all but 15 minutes per day without opportunity for regular outdoor exercise constitutes cruel and unusual punishment); Knuckles v. Prasse, 302 F.Supp. 1036 (E.D.Pa.1969), aff’d, 435 F.2d 1255 (3d Cir. 1970) (confinement of two prisoners for 2% days to cell with no windows or artificial light, a single bed, no clothing or toilet articles, and a malfunctioning toilet held cruel and unusual punishment); cf. Landman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966) (“Where the lack of effective supervisory procedures exposes men to the capricious imposition of added punishment, due process and Eighth Amendment questions inevitably arise.”) We agree with the district court that the plaintiffs’ allegations on this issue do not clearly present the extreme type of situation required to establish an Eighth Amendment violation. Since this case is to be remanded to the district court for further proceedings, we see no good reason to prevent the plaintiffs from presenting evidence on this issue if they choose to do so.
4. Finally, plaintiffs alleged that their rights to due process guaranteed by the Sixth and Fourteenth Amendments were violated by their transfer to other prisons without hearings or notice of the charges against them. Based on the allegations of the complaint, we find no merit to this argument, since we agree with the district court that a state prisoner has no constitutional right to remain in any particular prison. See Hanvey v. Pinto, 441 F.2d 1154 (3d Cir. 1971); Bundy v. Cannon, 328 F.Supp. 165, 173 (D.Md.1971).
The district court order of June 21, 1971, will be reversed and the case remanded for proceedings consistent with this opinion.
Chief Judge SEITZ concurs in the result because he believes that the important legal issues here presented should be decided on the basis of a fully developed record.
. At the pretrial hearing held on May 25, 1971, the defendants conceded some of the allegations in the plaintiffs’ complaint, as, for example, the allegations contained in Paragraphs 39 and 41 of the complaint that certain prisoners, including plaintiffs Moore and Holden, were transferred to punitive segregation and segregation without being charged with violations of prison regulations or granted a hearing. The district court ignored such stipulations in its opinion and disposed of the case on the basis of the allegations of the complaint. See N.T. 76.
. In Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967), this court upheld the dismissal of a prisoner’s civil rights complaint on the ground, inter alia, that the complaint as filed was “broad and conclusory” and failed “to state facts in support of its conclusions.” See 379 F.2d at 215. Although we have observed that actions under the civil rights statutes are to be “liberally construed by reviewing courts,” United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078, 1079 (3d Cir. 1971), we have continued to affirm the dismissal of actions which contain only vague and conclusory allegations. See, e. g., Marcedes v. Barrett, 453 F.2d 391 (3d Cir. 1971); United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078 (3d Cir. 1971); Fletcher v. Hook, 446 F.2d 14 (3d Cir. 1971). There is no reason to believe that this procedure is inconsistent with the Court’s holding in Haines v. Kerner, supra, since in that case the prisoner made specific allegations of unconstitutional conduct. As will appear below, however, since at least some of the allegations made by the plaintiffs are specific, the procedure involved in Negrich is inapplicable to the instant case.
. Plaintiffs alleged that Vibrations was entirely supported by donations from outside sources, and that the defendants frustrated their efforts to expand by refusing to permit the use of certain donated equipment (typewriters, cameras, etc.) and withholding financial contributions and mail regarding such contributions.
. The complaint alleged that while in punitive segregation prisoners are not permitted out of their cells for any period of time, and are deprived of personal belongings, visits, and other rights afforded the general prison population.” Complaint, ¶ 39.
. See also Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969).
. This is not to say, of course that this notice or hearing must in all cases precede the transfer to solitary confinement; in some cases, as, for example, during a prison riot, notice and hearing must be delayed a reasonable period of time.
. The Supreme Court has recently held that there is no distinction between personal liberties and property rights with respect to jurisdiction under 28 U.S.C. § 1343(3), explicitly rejecting the Second Circuit’s approach in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), which rested upon Mr. Justice Stone’s concurring opinion in Hague v. C.I.O., 307 U.S. 496, 531, 59 S.Ct. 954, 83 L.Ed. 1423. See Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).
. See, e. g., Sostre v. McGinnis, supra, 442 F.2d at 192 and cases cited; Bundy v. Cannon, 328 F.Supp. 165, 171 (D.Md.1971), and cases cited.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_casetyp1_7-2
|
E
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
BANGOR AND AROOSTOOK RAILROAD COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondent, Maine Central Railroad Company et al., Intervenors. MAINE CENTRAL RAILROAD COMPANY, Petitioner, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents, Bangor and Aroostook Railroad Company, Intervenor. Robert W. MESERVE and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corporation, Debtor, Petitioners, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents.
Nos. 77-1082, 77-1105 and 77-1108.
United States Court of Appeals, First Circuit.
Argued Sept. 12, 1977.
Decided March 30, 1978.
Rehearing Denied No. 77-1082 May 12, 1978. See 578 F.2d 444.
Laurence S. Fordham, Boston, Mass., with whom Verne W. Vance, Jr., Scott C. Moriearty, Boston, Mass., Todd D. Rakoff, Foley, Hoag & Eliot, Boston, Mass., William M. Houston, Edward T. Robinson, and Ga-ston, Snow & Ely Bartlett, Boston, Mass., were on briefs, for Bangor and Aroostook Railroad Co.
Peter J. Nickles and Eugene D. Gulland, Washington, D. C., with whom Covington & Burling, Washington, D. C., and Scott W. Scully, Portland, Me., were on briefs, for Maine Central Railroad Co.
Sidney Weinberg, Boston, Mass., for Robert W. Meserve and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corp., Debtor.
Lee A. Monroe and Sidley & Austin, Washington, D. C., on brief for intervenor Canadian Pacific Limited.
Charles H. White, Jr., Associate Gen. Counsel, Washington, D. C., with whom Mark L. Evans, Gen. Counsel, John H. Shenefield, Acting Asst. Atty. Gen., Carl D. Lawson, Daniel J. Conway, Attys., Dept, of Justice, and Raymond Michael Ripple, Atty., Washington, D. C., were on briefs, for I. C. C. and the United States.
Before CAMPBELL, Circuit Judge, TUTTLE, Circuit Judge, and WOLLENBERG, District Judge.
Of the Fifth Circuit, sitting by designation.
Of the Northern District of California, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
These are consolidated petitions to review cease and desist orders and damage awards entered by the Interstate Commerce Commission in a report and order of February 4, 1977. 28 U.S.C. §§ 2321, 2342, 2344. The Commission’s actions followed administrative proceedings concerning the legality of interchange arrangements between the Bangor and Aroostook Railroad Co. (BAR) and Canadian Pacific Ltd. (CP). Initiated in 1973 by the Commission itself, the proceedings focused upon complaints which Maine Central Railroad (MEC) and the Boston and Maine Corporation (B&M) filed in 1974 seeking damages on account of BAR’s purportedly unlawful preference of CP.
In agreement with an administrative law judge, the Commission concluded that BAR, “aided” by CP, had “unduly prejudiced Maine Central Railroad Co. and Boston and Maine Corporation... in the distribution of traffic in violation of section 3(4) of the Interstate Commerce Act [the Act],” 49 U.S.C. § 3(4).
Acting under authority of § 16(1) of the Act, 49 U.S.C. § 16(1), the Commission held BAR liable in damages to the two complaining carriers. But the Commission’s assessment of the amount of damages was considerably lower than the ALJ’s. It ordered BAR to pay damages of $176,323 to MEC and $86,917 to B&M, with 4% interest.
BAR here challenges the Commission’s ruling that it was guilty of conduct viola-tive of § 3(4). It also challenges the Commission’s awarding damages to MEC and B&M and the amounts assessed. In separate petitions, MEC and B&M also contest the amount of damages, claiming that the ALJ’s higher assessments should have been adopted.
We conclude that the Commission had ample basis to find that BAR violated § 3(4) and that its conduct damaged MEC and B&M. We also sustain the Commission’s determination of damages. However, since we find the cease and desist orders to be overly broad, we vacate those orders and remand that aspect of the case for clarification.
I
At the heart of BAR’s allegedly improper conduct is a formal agreement that BAR and CP concluded in July, 1970, initiating a shipper solicitation program in an attempt to divert “as much traffic as possible” from MEC and B&M onto BAR’s alternative connecting line, CP. The facts we state are drawn from the opinions of the ALJ and the Commission. Except as noted, they are substantially undisputed.
BAR’s track network spans 541 miles in Maine. It connects with CP at Brownville Junction, located 45.3 miles north of Northern Maine Junction, where BAR interchanges with MEC. MEC connects further on with B&M. These four railroads skirt and cross the Canadian border in the northeastern reaches of Maine, offering alternative through routes for shippers with goods to be transported across the region. Paper, frozen vegetables, starch, clay, and wood-pulp, primarily, are shipped over these lines. Depending on a shipper’s origination and destination points, he may have the option of routing his traffic via BAR and CP, or via BAR with MEC and B&M. BAR is primarily an originating carrier, receiving goods directly from shippers rather than from other railroads, and shipping them out toward destinations not reached by its lines.
In October of 1969, the Amoskeag Co., a company controlled by a “voluntary association” known as Dumaines, purchased 99 percent of BAR stock. Frederic C. Du-maine, who controls Dumaines, became a director and chief executive officer of BAR after the purchase. When this purchase was made, Amoskeag owned 26 percent of MEC stock as well; the Commission found that “word of an impending merger between MEC and BAR became widespread” after the acquisition. In early November, 1969, the president of BAR (who had stayed on at the request of Dumaine) asked that BAR’s general freight manager prepare a traffic study showing which of the cars presently traveling via Northern Maine Junction could instead be interchanged at Brownville Junction, without modifying their destinations. A series of memos on this subject followed; most were passed on to Dumaine by the president of BAR, in late November and early December of 1969. The memos detailed the commodities and numbers of carloads that were subject to such a diversion; one set forth the estimated loss, about $2.8 million per year, that was predicted to accrue to MEC and B&M should all 24,000 such carloads successfully be rerouted. Another memo, circulated in mid-December, compared transit times for goods traveling the alternative routes, and showed little over-all difference between the two routes.
Negotiations between CP and BAR to arrange a cooperative effort in support of a freight diversion plan were initiated late in 1969, and continued through the first half of 1970. Salient features of the negotiations were BAR’s undertaking to furnish CP origin and destination statistics of all traffic subject to diversion, CP’s duty aggressively to solicit new traffic, and CP’s agreement to expand and improve its interchange facilities at Brownville Junction in order to handle the expected additional traffic. CP also indicated by letter its understanding that any agreement regarding concerted solicitation efforts that was ultimately concluded would be “long-term and not subject to any reversal of policy” by BAR.
In mid-January, BAR investigated the potential financial impact on BAR of the proposed re-routing efforts: it compared the divisions that it would receive from additional traffic of different commodities when shipped over CP instead of over MEC. The investigation showed that diversion would decrease BAR’s revenues in some cases and induced CP to offer to pay BAR a “car allowance” for every additional car moving over its lines that would otherwise give BAR a diminished division.
After further discussion and correspondence, the terms of an agreement were reached in early June of 1970, and activity pursuant to that agreement intensified. Under the heading “PRIVATE” a written confirmation of the agreement set forth inter alia that BAR had,
“agree[d] to interline with CP Rail via Brownville Junction as many cars of paper products and potatoes as it is possible for it so to interline and anticipates that by reason of this agreement such interline traffic will be increased by approximately 24,000 cars annually as follows:
“Forwarded to CP Rail
Paper 11,000
Potatoes 4,500
Other 3,500
Sub-total 19,000
Received from CP Rail
Misc. 5,000”
The agreement described the allowances that CP agreed to pay BAR on additional carloads of potatoes and paper products that would be interlined at Brownville Junction; those payments were to be made “quarterly by check through the Claims Section of the Auditor of Freight Claims”. CP also formally undertook to improve its interchange facilities. Not specifically spelled out in the memorandum, but apparent from the correspondence and testimony regarding the negotiations of early 1970, was the commitment of both parties vigorously to solicit traffic on behalf of CP. The pact was to bind the parties over a fifteen year period; there was provision, however, for reopening and renegotiation every five years, on 180-day notice. The agreement was not formally executed until July 31, 1970, but it was by its terms to take effect retroactively, as of January 1, 1970.
The Commission received evidence that pursuant to this agreement, both carriers approached shippers, urging them to route their traffic over CP instead of via MEC. Though service differences such as transit time, reliability, and car supply were sometimes cited to the shippers in support of the solicitations, those comparisons do not appear to have been grounded in either fact or prior study. BAR also “distributed suggested routes to the principal shippers on its lines.... All suggested routes were via Brownville Junction.” CP and BAR personnel made some solicitation visits jointly, in search of more traffic for CP.
The sales efforts of BAR and CP coincided, with a drop in traffic shipment over MEC that was marked enough to prompt MEC’s inquiry of shippers and carriers about the possible reasons behind the decrease. As MEC became generally aware of the intensified promotion campaign on CP’s behalf, MEC engaged in some counter-solicitation in an attempt to stem the tide, and evidently had some success. BAR’s and CP’s efforts continued in varying intensity over five years, until the agreement was terminated at CP’s request on February 18, 1975, retroactive to January 1, 1975.
II Liability under § 3(4)
Section 3(4) of the Act, entitled “Interchange of traffic”, provides,
“All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.” [Emphasis supplied.]
49 U.S.C. § 3(4). In a rate discrimination case brought under the section, the Supreme Court has commented generally, “In the absence of any settled construction of § 3(4),... its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision.” Western Pacific Ry. Co. v. United States, 382 U.S. 237, 244, 86 S.Ct. 338, 343, 15 L.Ed.2d 294 (1965).
The Supreme Court has not had occasion expressly to construe the language in § 3(4) barring “undue prejudice” in the distribution of traffic. However, a three-judge court in Southern Pacific Ry. v. United States, 277 F.Supp. 671 (D.Neb.1967), aff’d mem., 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968), has interpreted this part of § 3(4) to prohibit a carrier from soliciting traffic preferentially, in favor of one connecting line over another:
“The prohibition of Section 3(4) is against discriminatory conduct of the carrier against connecting lines. The Act cannot be circumvented by wrongfully inducing the shipper to commit the discrimination in place of the carrier. In other words, the legislation is not to be so weakly construed that it permits the carrier to accomplish indirectly what he cannot do by direct preferential routing. In view of the clear policy expressed by the statute, we see no meaningful distinction between arbitrarily soliciting the unrouted freight at that time and arbitrarily routing it should the shipper leave it unrout-ed.... ‘[T]here is no basis for the contention that Congress intended to exempt any discriminatory action or practice of interstate carriers affecting interstate commerce which it had authority to reach.’ U
“... [W]e feel that preferential solicitation when done on a ‘preconcerted’ and ‘systematic’ discriminatory basis,. falls within the statutory prohibition of Section 3(4) as well [as preferential routing]. The preferential solicitation dictated by the agreement is without concern for competitive benefits of similar lines and without relationship to the best possible service to the shipper. It is as much an apportionment of ‘economic advantage’ as direct routing itself.”
277 F.Supp. at 685, quoting Houston, East & West Texas R. Co. v. United States, 234 U.S. 342, 356, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), and Western Pacific Ry., supra. It is to be noted that the judgment in Southern Pacific was summarily affirmed by the Supreme Court, although summary affirmance on statutory questions such as were there presented does not inevitably conclude future interpretations of § 3(4). Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam); Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (Burger, C. J., concurring).
We accept the district court’s interpretation in Southern Pacific, and the Commission’s similar construction in this case. Section 3(4) addresses the “interchange of traffic.” The proscribed act is “unduly prejudicpng] a connecting line in the distribution of traffic.” A defense is provided carriers who route traffic “specifically routed by the shipper,” New York v. United States, 568 F.2d 887, 894 n. 12 (2d Cir. 1977); this is consistent with other provisions of the Act that protect shippers’ freedom. The other subsections within § 3(4) all speak to a carrier’s obligation to afford even-handed treatment to its connecting lines, except room is allowed for different treatment when warranted by so-called “service considerations.” The provision seems obviously meant to avert the anti-competitive effects of a powerful or well-positioned carrier using its influence and position in favor of one connecting line over another, and thus skewing the market as that market is structured under the Act.
Especially in light of Southern Pacific, we think the language of the statute put BAR fairly on notice that its conduct was prohibited. BAR, primarily an originating carrier, waged a broad-gauged and long-term solicitation campaign in support of only one of its connecting lines, CP. There is substantial evidence supporting the Commission’s finding that the sales effort was initiated, and continued, not on the basis of any markedly superior service (i. e. “service considerations”) that CP furnished its shippers, but rather for some other motive. The evidence indicated that in the study of comparative transit times undertaken prior to BAR’s broaching the possibility of joint solicitation with CP, no one carrier demonstrated a distinct advantage. Until after the negotiations had begun, BAR attempted no assessment of the reliability of alternative carriers, nor even of BAR’s own divisions in the rates of commodities shipped over the two available routes. An examination of the latter subsequently revealed that BAR itself would lose revenues on potatoes and paper products should those goods be interlined with CP rather than with MEC, causing CP to agree to pay BAR so-called “car allowances” for diverted traffic. The facilities of CP did not dictate that it would be in every shipper’s interest to ship via CP: CP had to expand and upgrade its interchange facilities with BAR as part of the agreement to solicit the divertible traffic.
Further, BAR points in its brief to no specific instances where BAR’s recommendations to shippers were individually tailored according to service considerations. BAR’s solicitation efforts were uniformly on behalf of CP. Its undertaking was to solicit “all traffic possible” for CP, not just traffic that CP could, objectively, handle better than others. The agreement BAR entered into with CP committed it to seek traffic on behalf of CP over a fifteen-year period, without provision for release in less than five years. Should CP’s service have deteriorated, BAR remained obliged to solicit on its behalf. The agreement was a secret one; the “car allowances” CP was to pay BAR appear to have been concealed as freight claim payments. BAR favored CP by providing it with a detailed list of shippers and commodities originating on BAR lines; BAR distributed no such lists to other carriers as a matter of policy. This cannot conceivably constituted even-handed treatment in the distribution of traffic.
Post hoc characterization of these activities as salutary promotion of competition through fair-minded recommendations to strong and sophisticated shippers is implausible. Though the Commission made no express finding that these solicitations were fraudulent or coercive, nor that competition, as distinct from competitors, was injured by the campaign, its findings did not reveal the impartial approach toward connecting lines in the distribution of traffic that is required of an originating carrier by § 3(4).
We therefore have little hesitancy in upholding the Commission on the facts of this case. In so doing, we go no further than to support a ruling that active and deliberate solicitation by an originating carrier for one or more of its connecting lines, to the plain neglect and detriment of other connecting lines, violates § 3(4) of the Act, when such solicitation is not supported by a significant service differential between those carriers (or any other specific exception grounded in the Act) that objectively could justify a departure from impartial treatment.
While this construction of § 3(4) seems clear enough, BAR disagrees, and has launched a multi-faceted attack on both the Commission’s interpretation and application of the section. First, with CP, it urges that the traffic that it solicited was “specifically routed by the shipper,” in that it arrived at BAR’s loading platforms, for example, with routing instructions signed by the shipper. BAR argues that it merely followed the shippers’ instructions when it routed the solicited traffic via CP. Moreover, BAR claims to have been prohibited by § 3(4) from rerouting that traffic in derogation of the shippers’ wishes. BAR relies correla-tively on sections 15(10), 15(11), and 15(12) of the Act, 49 U.S.C. §§ 15(10), 15(11), 15(12), as exemplifying Congress’ intention to protect “unfettered shipper choice,” and submits that to construe § 3(4) as prohibiting BAR from routing in accordance with shippers’ instructions would “make a mockery” of § 15(10), and conflict with the purposes of the Act.
We find no merit in this argument. Section 3(4), while consistent with the subsections of § 15, does not blindly deify “shipper choice.” Its focus is inter-carrier relations. The shipper choice that BAR relies on in its defense was tainted by BAR and CP’s solicitation efforts, which were not founded upon the shippers’ service interests, and provides no satisfactory justification of the systematic favor BAR bestowed on CP.
BAR objects that no inquiry was made into whether the prejudice suffered by MEC and B&M was “undue.” It contends that “undue” prejudice refers to injury incurred as a result of harm to competition, drawing an analogy to antitrust law. But while the Commission has characterized the statute as “pro-competitive”, that characterization does not thrust § 3(4)’s construction into the thick of antitrust doctrine. BAR’s analogy asks too much. Undue prejudice may refer to a disadvantage to a connecting line that is unwarranted by service considerations. Such harm to connecting lines as may result from a carrier’s breach of the strictures of § 3(4) are recoverable in damages under the terms of the Act without an independent assessment of the state of “competition” in the market, and the Commission is empowered to make such an award. 49 U.S.C. §§ 8, 13(1), 16(l). And as the Commission noted, it is “inapposite for BAR and CP to maintain that the BAR-CP agreement promoted competition when a normal competitive situation presupposes that each connecting line has equal advantage and opportunity to solicit shippers.”
BAR further urges that its soliciting activities and agreement with CP were not shown to have “distributed traffic.” It says that it would be illogical to conclude that the ultimate routing instructions given by the shippers on each of the thousands of shipments reflected BAR’s choice rather than the shipper’s choice. But while it might be possible for a minor connecting carrier to maintain that its solicitations on behalf of another connecting line did not carry enough weight to amount to “distribution”, an originating carrier such as BAR, controlling many miles of track by which shippers gained railway access to various destination points, could reasonably be found to command a position from which it exerts substantial influence over shippers’ choice of routes, regardless of a shipper’s experience or sophistication. This is not to say that an originating carrier necessarily controls its shippers — it may depend on them collectively as much as they on the carrier — nor that a carrier could sanction noncooperative shippers by simply refusing them service — other sections of the Act limit a carrier’s power in dealing with shippers; but a shipper might well feel compelled to cooperate with an originating carrier rather than incur its disfavor. Further, BAR and CP instituted and carried out a systematic program of solicitation, pursuant to agreement, rather than sporadically asking for business in a few instances. We see no reason not to characterize this as an effort to “distribut[e] traffic” in contravention of § 3(4).
Last, BAR asserts that the Commission’s reading of the statute conflicts with the first amendment of the United States Constitution. This contention was not raised before the agency, but even assuming it is now open we see no merit in it. Though first amendment protection has lately been afforded some types of commercial speech, see Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (attorney advertising); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (residential “for sale” signs); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (advertising of drug prices), the first amendment has not yet been held to limit regulation in areas of extensive economic supervision, such as the securities, antitrust, and transportation fields, where the exchange of information can be a vital element in an illegal scheme. Shaping the regulation of “speech” in those areas is more a matter of policy development than one of constitutional right; it lies most appropriately with Congress and the regulatory agency. Even if some language in the above-cited cases may have seemed to herald a new era of first amendment law, see Virginia State Board of Pharmacy, supra, 425 U.S. at 762, 96 S.Ct. 1817, the revolution has yet to envelop the transportation field to the extent BAR asserts.
Moreover, unlike the statutes questioned in the cases cited by BAR, the challenged construction of § 3(4) does not dictate silence on the part of carriers. It does not prevent an originating carrier from providing information of any and all sorts to shippers on an even-handed basis. It does require that an originating carrier make good faith efforts to ascertain the accuracy of purported “information,” and it limits the pressure that an originating carrier may put on a shipper. Without demonstrable superiority of a connecting line, an originating carrier, in its influential position, is precluded from sponsoring that line. Cf. Bates v. State Bar, supra, 433 U.S. at 4904, 97 S.Ct. 2691. It is hard to see how this standard does violence to first amendment values.
In the present case, despite the absence of an express ruling that BAR’s solicitation included statements that were fraudulently or deceptively made, the Commission’s opinion leaves little doubt that BAR’s statements were at least misleading. That a few of the statements were discovered after the fact to have been inadvertently accurate offers no justification for BAR’s manifestly unequal treatment of CP and MEC, and does not rebut an overall judgment that the solicitations were recklessly made.
Finally, we dismiss BAR’s argument that the Commission’s findings were not supported by substantial evidence on the record viewed as a whole. Though BAR can point to portions of the record that might have justified findings different from the Commission’s, the Commission could properly choose to rely on the evidence that it found most trustworthy and plausible. Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Its conclusions derive substantial support from the record: this is the test they must satisfy. Illinois Central RR. Co. v. Norfolk & Western Ry. Co., 385 U.S. 57, 66, 69, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 5 U.S.C. § 706(2)(E).
Ill Damages
1. The Commission’s method of calculation.
To calculate the extent of the damage to MEC and B&M resulting from BAR and CP’s unlawful conduct, the Commission applied a “before and after” test. It projected the expected market shares of the two carriers in certain divertible commodity traffic on the basis of previolation market figures, and compared those shares with the actual market shares enjoyed by MEC and B&M over the period from 1970 through 1974, when the unlawful activity was in progress. The market share differential was then translated into terms of carloads lost by the carriers for each commodity. Each carload of a given commodity was assigned a figure representing the average gross revenue brought in by such carloads. To each carload was also attributed a portion of the carrier’s operating expenses, including certain overhead costs which were determined in accordance with guidelines developed in rate-making procedures before the Commission. These costs were integrated into the damage formula by application of certain “operating ratios” calculated in standard fashion by the Commission; those ratios reflect the proportion of expenses to revenues in traffic of a given commodity. The Commission totaled the estimated net revenues lost per carload in each type of traffic, combined with the number of carloads lost per commodity by virtue of BAR’s conduct, to give a monetary estimate of the injury suffered by MEC and B&M. The Commission attempted to exclude from its calculation, traffic that originated or terminated on MEC, B&M, or CP, since that traffic would not have been subject to diversion. B&M’s damages were assessed essentially as a proportion of MEC’s award. See infra.
2. Damages — The carriers’ primary objections
All three carriers complain at length about the Commission’s computation of damages. BAR strenuously argues that no damages at all should be recovered by MEC and B&M. It says that the proofs relied on by the Commission and proposed by those carriers are “purely speculative” and fail to satisfy the standards of proximate cause required in a court of law. We find this contention without merit. A similar “before and after” comparison of market shares has been accepted in antitrust litigation when more precise measurements of the plaintiff’s damage would be too burdensome or are unobtainable for some other reason. See, e. g., Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Harverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 804-07 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). BAR contends that by examining interchange reports for Brownville and Northern Maine Junctions over 1970-74 and interviewing shippers, the injured carriers could and should have reconstructed unlawful solicitations and the shippers’ state of mind with regard to individual shipments in order to arrive at a precise count of shipments that were unlawfully diverted. But such an investigation would have required combing through the records of more than ten thousand shipments in each year of the five-year period. The difficulty of the task has been augmented by BAR’s destruction, since the violation, of interchange information concerning the destinations of the diverted freight, as well as of the computer printouts on shippers that BAR passed on to CP. The law does not demand that injured parties be so burdened. The wrongdoer could be required to bear the risk of uncertainty in the calculation of the number of carloads diverted by its actions, see Story Parchment, supra, 282 U.S. at 563-65, 51 S.Ct. 248. The Commission supportably found that MEC and B&M had met the burden of establishing “some resultant injury” from the § 3(4) violation. This was a rational inference, for, as the ALJ explained,
“[tjhere are no facts of record which evidence service superiority in movements via Brownville Junction over Northern Maine Junction. In 1969 the transit times via the two interchange points were comparable. Routing changes resulting from carrier rate adjustments and concessions are short term and occur in both study and compared periods. There is no evidence of any abnormal market trend in the compared periods which affected originations and terminations on BAR. Nor is there any evidence of changes in supply sources and sales outlets that required elimination of MEC or MEC and B&M participation as intermediate carrier or carriers in the movements. What were present in the 1970-74 periods which were not present in 1969 were (1) the BAR-CP agreement and solicitation campaign and (2) the Great Northern-CP 100 car a month agreement.”
Once the fact of injury was demonstrated, the Commission was authorized to determine if “any party. is entitled to an award of damages under the provisions of this chapter for a violation thereof.” 49 U.S.C. § 16(1). The method of assessing the damages to be charged to BAR became a matter for the Commission’s reasoned judgment, based on its expertise in the field. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); see Bagel Bakers Council v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977). The Commission had merely to settle on a reasonable and rational method of computation, see Bagel Bakers Council, supra. We must defer its choice among rational methods. NLRB v. Seven-Up Bottling Co., supra. The Commission’s decision to award damages for this § 3(4) violation, with its reasoned conclusion as to their measurement, reflected a policy choice peculiarly within its realm. See 49 U.S.C. § 12; Consolo v. FMC, supra, 383 U.S. at 620-21, 86 S.Ct. 1018 (1966); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); United Van Lines, Inc. v. ICC, 545 F.2d 613 (8th Cir. 1976); cf. American Power and Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Maine Potato Growers v. Butz, 540 F.2d 518 (1st Cir. 1976). See generally 4 Davis, Administrative Law Treatise § 30.10 (1958). Applying these principles, we disagree with BAR that the Commission’s methodology was outside acceptable limits, as providing a reasonable yardstick for estimating the harm visited on MEC and B&M by BAR’s actions.
While BAR seeks elimination or reduction of the award, the injured carriers seek reinstatement of the ALJ’s higher assessments. Thus they ask us to remand the case with instructions to reinstate the ALJ’s decision and award. However, it is not our province to choose between the awards of the ALJ and the Commission. Any review of the ALJ’s actions is only incidental to our review of the Commission’s decision. See 28 U.S.C. §§ 2321, 2342, 2344. The Commission was in no sense bound by the ALJ’s recommendation. “An agency loses no power of decision by having an administrative law judge preside at a hearing.” Davis, Administrative Law of the Seventies (1976 Supp. to Administrative Law Treatise) § 10.03 at 313. See Adolph Coors Co. v. FTC, 497 F.2d 1178, 1184 (10th Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). A reviewing court may consider the decision of the ALJ as part of the record, but, except on matters of credibility, it is due little deference when the Commission has made an independent evaluation that is substantially supported by the evidence. See United States Retail Credit Ass’n, Inc. v. FTC, 300 F.2d 212, 216-17 (4th Cir. 1962).
Thus the question before us is not whether the ALJ’s approach was, in our view, better, but simply whether the Commission’s method of computing the extent of the carriers’ injury was rational. As regards the latter question, the injured carriers are not persuasive in arguing that it was not. MEC and B&M maintain that their projections of market share (which the ALJ accepted) based on the percentage of the market held by each during 1969, a one-year period, should not have been rejected by the Commission. The Commission, however, deemed those to be speculative, and made independent market share projections, based on market share figures for the preceding five to eight years. Where a trend was. evident, the Commission extrapolated from the figures according to the trend; where no increasing or decreasing market share appeared, the Commission averaged the statistics for the preceding years and applied that simple average as a constant estimated market share during the period of the violation in order to evaluate the carriers’ loss as indicated by the traffic that was actually shipped over their lines during that period. Where figures were not available for more than a one or two-year period before the violation, the Commission declined to award damages, finding the projections based thereon “purely speculative.” (As noted above, this was the case for traffic in clay and woodpulp). Even if, as MEC and B&M maintain, a finding of wilfulness would have warranted applying a more lenient burden of proof on MEC and B&M as to the extent of their injury, this principle does not require that an alternative method, perhaps a more accurate method, be abandoned because a rougher calculation might do. In its report, the Commission examined the alternative methods proposed by the carriers, explained its reason for rejecting them, and set forth in some detail the analysis it chose to rely on. We cannot say as a matter of law that these methods were unreasonable nor that the Commission was
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_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.
McREYNOLDS v. NEW YORK LIFE INS. CO.
No. 12000.
Circuit Court of Appeals, Eighth Circuit.
Oct. 17, 1941.
Orrillis E. Shultz, of St. Joseph, Mo. (Stephen K. Owen, of St. Joseph, Mo., on the brief), for appellant.
Richard S. Righter, of Kansas City, Mo. (Horace F. Blackwell, Jr., of Kansas City, Mo., F. H. Pease, of New York City, and Lathrop, Crane, Reynolds, Sawyer & Mer-sereau, of Kansas City, Mo., on the brief), for appellee.
Before SANBORN and JOHNSEN, Circuit Judges, and NORDBYE, District Judge.
SANBORN, Circuit Judge.
The question presented by this appeal is whether, under the law of Missouri, a contract of accident insurance issued in that State to a citizen of that State, which expressly excluded from coverage death caused by the inhaling of gas, nevertheless covered such a death if the gas was voluntarily inhaled by the insured while insane.
The appellant is the beneficiary named in two identical life insurance policies issued to Glenwood E. McReynolds, each of which contained -a clause providing for double indemnity in case of accidental death as defined in the clause. She brought this action, alleging in her complaint that the insured “did receive bodily injury through accidental means, to-wit, through inhaling carbon monoxide gas self-administered while insane which said gas then and there resulted directly, independently and exclusively of all other causes in the death” of the insured. She' set up in her complaint the pertinent provisions of the policies in suit, and asserted that she was entitled to double indemnity. The insurer moved for a dismissal of the complaint upon the ground that it failed to state a claim upon which relief could be granted. Rule 12(b)(6), Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. The District Court granted the insurer’s motion, and from the judgment of dismissal this appeal was taken.
The double indemnity clause of each policy provided: “The accidental death benefit specified shall be payable upon receipt of due proof that the death of the insured resulted * * * from bodily injury effected solely from external, violent and accidental means * * * provided however that such accidental death benefit shall not be payable if the insured’s death resulted from the taking of poison or inhaling of gas, whether voluntary or otherwise.”
It is conceded that the clause also • excluded from coverage death resulting from “self-destruction whether sane or insane.”
For many years there has been in force in Missouri a statute commonly known as the Missouri Suicide Statute, which is now Sec. 5851, R.S.Missouri, 1939. It reads as follows: “Sec. 5851. Suicide no defense, when. — In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.”
This case turns upon the effect which this statute has upon the double indemnity clause of the policies in suit. Obviously, in the absence of the statute there could be no recovery for two reasons: (1) because the double indemnity clause excluded from coverage suicide whether the insured was sane or insane; and (2) because the clause excluded death from inhaling gas. The appellant contends that the Suicide Statute invalidates both exclusions, provided it can be shown that the insured came to his death from inhaling gas while insane. The insurer contends that the effect of the Suicide Statute is merely to invalidate the exclusion of suicide while insane and to prevent the assertion of any defense based on such suicide, and that the statute does not limit, and was never intended to limit, the right of the insured and insurer to agree that death from inhaling gas, whether accidentally or voluntarily, should be excluded from coverage. The District Court decided that the Suicide Statute of Missouri did not apply to a case “in which the species of accident from which the insured died or by which he was injured was entirely excluded from the coverage of the policy.”
While the statute has been held applicable to insurance against accidental death (Logan v. Fidelity & Casualty Co., 146 Mo. 114, 47 S.W. 948), the exact question here presented has not been decided by the Supreme Court of Missouri. Two intermediate appellate courts of that State have considered substantially the same question and have reached diametrically opposite conclusions. The question was considered m 1910 by the St. Louis Court of Appeals in Applegate v. Travelers’ Ins. Co., 153 Mo. App. 63, 132 S.W. 2. The policy in that case covered accidental death, but provided that if death was caused by gas, vapor, or poison, the insurer would pay only one-tenth of the face amount of the policy. It was alleged in the petition that the insured had committed suicide by drinking carbolic acid. One defense of the insurer was that the death being due to poison, its liability was only one-tenth of the face amount of the policy. It was held that because of the Suicide Statute, this defense was not available to the insurer. The same question was considered by the Springfield Court of Appeals in 1916 in the case of Scales v. National Life & Accident Ins. Co., 186 S.W. 948. In the Scales case the policy covered accidental death, but provided that the insurer should only be liable for one-fifth of the face amount of the policy if death resulted from poison. The insured killed himself by taking carbolic acid. It was held that the beneficiary could recover only in accordance with the terms of the policy, and that the provision for a reduced ,..amount in case of death from poison was valid and was not affected by the Suicide Statute.
The Scales case went to the Supreme Court of Missouri, 212 S.W. 8, which approved the conclusion reached by the Springfield Court of Appeals, but upon the grounds that it did not appear from the evidence whether the insured was sane or insane when he killed himself, that the presumption was that he was sane, and that suicide committed while the insured was sane was not an accidental death and was not made such by the Suicide Statute or by any previous decision of that court construing the Suicide Statute. Of the statute, the court, among other things, said (pages 9, 10 of 212 S.W.) : “That statute does not put into the policy a single obligation other than those mentioned in the policy. It merely takes out of the policy the defense of suicide as to the obligations mentioned in that policy.” In conclusion, the court said: “As the plaintiff, under the facts as shown, cannot recover more than $140 [the face amount of the policy was $700], it becomes unnecessary for us to pass on the question so thoroughly and ably discussed by the Court of Appeals.”
In the later case of Brunswick v. Standard Acc. Ins. Co., 278 Mo. 154, 213 S.W. 45, 7 A.L.R. 1213, which did not involve the question here presented, but which did involve the question of the effect of the Suicide Statute upon a policy insuring against death by accident, the Supreme Court of Missouri said of the statute (page 49 of 213 S.W.) : “While the above section makes absolutely void all stipulations exempting liability on account of suicide and all defenses bottomed on the fact of suicide, yet it nowhere relieves the plaintiff, in an action upon a policy of accident insurance, from making proof that the death of the assured was caused by an accident. In short, as forecast above, the section does not write into an accident policy a cause of action where none existed upon the facts. Granting, for the sake of argument, that the section (the applicability of which to accident policies, though now fairly well settled, has been strenuously and ably com bated and denied) could have gone further, and provided that ‘suicide by a sane person shall be deemed to be an accident/ it is enough to say that it does not so provide. If the Legislature desired to create a cause of action upon a policy of accident insurance where none existed within the obvious meaning of the plain language of such contracts, it would have been easy to say so. Therefore, unless the courts are able to say that a death by suicide of a sane person is a death by accident, further legislation would seem to be called for. There are no cases up to the present time so holding. Both the reason of the thing and the cases are the other way.”
While statements in opinions of Missouri courts dealing with cases in which the exact question for decision here was not ruled upon or was not involved, may not be the safest guides to follow, we think that what the Supreme Court of Missouri has said in the Scales and Brunswick cases as to the effect of the Suicide Statute upon accident policies, justifies, if it does not require, the conclusion that, while the Suicide Statute invalidates all agreements in such policies which seek to exempt an insurer from liability for suicide of the insured while insane, the statute does not relieve his beneficiary from proving that the death of the insured was otherwise within the coverage of the policy. That being so, an accident policy which insured only against death from taking poison would afford coverage if the insured while insane caused his own death in that way, regardless of any provision of the policy excluding suicidal death; but the policy would not cover suicide of the insured while insane if caused by gunshot, knife wounds, drowning, inhaling gas, jumping from a bridge or a building or by any means except poison. Under that construction of the statute, the beneficiary of an insured under an accident policy who committed suicide while insane, is in as good a position as, but in no better position than, the beneficiary of an insured whose death was caused accidentally and involuntarily by the same means. Under the construction contended for by the appellant, a policy which insured only against death from a stroke of lightning would have to be construed as covering death caused by any violent means which an insured might use in doing away with himself, provided he was insane at the time.
The difficulty of making a suicide statute such as that here involved — which is entirely appropriate to straight life insurance — fit policies of limited coverage against death by accident, is well illustrated by the present controversy and was pointed out by this Court in Business Men’s Assurance Co. v. Scott, 17 F.2d 4, in which we expressed the view that the Colorado Suicide Statute was never originally intended by the legislature of that State to apply to accident policies carrying death benefits, because of its inappropriateness to stich insurance. At the time that case was decided, the Supreme Court of Colorado had ruled that the statute applied to such policies, but it had not determined whether the statute required them to cover suicide committed by the insured while sane. We refused to go further than the Supreme Court of Colorado had gone in construing the suicide statute of that State, but held, as required by the decisions of that court, that the statute was applicable to a policy insuring against death by accident generally, where the insured was shown to have killed himself while insane. The wisdom of refusing to extend the Colorado statute beyond the limits to which the Supreme Court of Colorado had gone at the time the Scott case was decided by this Court is demonstrated by the fact that thereafter that court, in Capitol Life Ins. Co. v. Di Iullo, 98 Colo. 116, 53 P.2d 1183, held that the Colorado statute did not require that accident policies cover the suicide of an insured while sane. The Supreme Court of Colorado has now held in New York Life Ins. Co. v. West, 102 Colo. 591, 82 P.2d 754, that the statute does not require policies insuring against death by accident, to cover death by suicide while insane if the death is of a kind not covered by the policy. The policy in that case contained the same provisions as the policies here in suit and the insured committed suicide by taking poison while insane. While this Colorado decision is exactly in point, it is, of course, not determinative of this case, which is controlled by Missouri law.
It is conceivable that the Supreme Court of Missouri, when the exact question here presented comes before it, may reach a different conclusion as to the effect of the Missouri Suicide Statute upon such a situation as that presented than has been reached by the Supreme Court of Colorado, by the Springfield Court of Appeals in the Scales case, and by the District Court in this case. We think that those courts were right in construing such statutes as dealing with defenses, and not with coverage. But, in any event, we are satisfied that this Court and the District Court, in determining the effect of the Suicide Statute of Missouri upon the policies in suit, are entirely justified in going no further than the decisions of the courts of Missouri presently require them to go.
The judgment appealed from is affirmed.
The St. Louis Court of Appeals said (page 11 of 132 S.W.):
“In the argument of this case at bar, as well as by printed brief, the learned counsel for the appellant suggest that the statute was not applicable because defendant had not and was not setting up suicide as a defense. Literally, this is true; the answer carefully and - skillfully avoids that. But this argument is effectually disposed of in the opinion of the Supreme Court of the United States in the Whitfield Case, supra [Whitfield v. Ætna Life Ins. Co., 205 U.S. 489, 27 S.Ct. 578, 51 L.Ed. 895], where, to repeat, Justice Harlan says, at page 496 of 205 U.S., at page 580 of 27 S.Ct., 51 L.Ed. 895: ‘Whatever tends to diminish the plaintiff’s cause of action or to defeat recovery in whole or in part amounts in law to a defense.’ It is immaterial that the defense was anticipated by the petition, and that the answer does not in terms rely on suicide as a defense. The present action is to recover the whole amount specified in the policy. Appellant here, defendant below, is defending against that. , While it is true that it does not in terms and by its answer set up suicide as a defense to the policy, it is beyond question that it is defending against a recovery for the whole amount of the policy, on the ground that the insured died from taking poison. Whether he took that poison accidentally or of purpose is not material here. If the fact that he died from the effect of poison, which it is admitted he took with suicidal intent, is not urged by the appellant as a defense against the action, then it follows that it is before the court without having interposed any defense whatever in this case. It seems a rather narrow argument to say that while the answer avers the insured died by poison, and stops there, therefore the defendant has, by its pleading, cut out and eliminated the statute, although in fact it appears by the agreed facts that the insured took the poison with suicidal intent. This is hardly even specious; it certainly is not sound. The argument is also advanced that suicide does not give a cause of action. That is true. The cause of action arises on the policy as interpreted by the statute and by reason of the death of the insured. The policy, as interpreted by the law and by the courts, does provide that, when death occurs from suicide, whether that suicide is accomplished by poison or by shooting, the beneficiary shall recover for the full amount insured to be paid by reason of death occurring. The statute eliminates suicide as a defense.”
The Springfield Court of Appeals said (pages 951 and 952 of 186 S.W.):
“It would seem against all public policy to allow an insurance company to insure the lives of only such persons as commit suicide, and this is intimated in the case of Ritter v. Mutual L. Ins. Co., 169 U.S. 189, 18 S.Ct. 800, 42 L.Ed. 693. Where the policy provides that if the injury when fatal results directly or indirectly from poison the amount of indemnity shall be $140, to hold that the company will be bound to pay $140 if the poison is taken accidentally, and that it must pay $700 if the poison is taken with suicidal intent, is in effect holding that a policy putting a premium on suicide, and giving suicide as a preferred cause of action is a legal and valid agreement. We are of the opinion that our suicide statute was intended to merely cut off one weapon of defense formerly in the hands of insurers, and was never intended to create a cause of action upon affirmatively showing suicide as a cause of the death. “It seems to us there is a vast difference between holding that suicide, under our statute, cannot be made by contract a partial defense or be used to reduce the recovery and holding that it is competent for an insurance company to provide an indemnity of $140 where death results from poison howsoever taken. To illustrate: Suppose a policy provided an indemnity of $5,000 in the event of death resulting from a gunshot wound and $500 in case death results from poison and contained a clause against suicide, and the policy only provided for these two classes. Now, although suicide by shooting could not be shown to defeat or decrease the first amount, could it be contended that because suicide was committed by taking poison the beneficiary could recover $5,000 by reason of the statute? This would be a very different case from one in which the policy contained a provision to pay $5,000 if death resulted from a gunshot wound, but only $500 if the wound was inflicted for the purpose of committing suicide. The mere fact of suicide would not, in and of itself, create a greater liability than if death resulted unintentionally from the same circumstances and from the same cause.”
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_usc2
|
28
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Ralph Gordon BISHOP, Petitioner-Appellant, v. The MEDICAL SUPERINTENDENT OF the IONIA STATE HOSPITAL, OF the STATE OF MICHIGAN, Respondent-Appellee.
No. 17306.
United States Court of Appeals Sixth Circuit.
May 23, 1967.
Ronald VanBuren, Portland, Mich., for appellant.
Curtis G. Beck, Asst. Atty. Gen., Lansing, Mich., for appellee.
Before WEICK, Chief Judge, and MILLER and CECIL, Senior Circuit Judges.
Wilbur K. Miller, Senior Circuit Judge for the District of Columbia, sitting by designation.
PER CURIAM.
This is an appeal from an order of the United States District Court for the Western District of Michigan, dismissing the petition of Ralph Gordon Bishop, plaintiff-appellant, for a writ of habeas corpus. The district judge dismissed the petition upon two grounds: one, the appellant had not exhausted his state remedies and, two, he was not then confined within the limits of the Western District of Michigan. Since the district judge dismissed the petition1 without an evidentiary hearing, the question before us is whether the petition states a cause of action.
A brief statement of facts as alleged in the petition will serve to bring the issues into focus. On or about October 8, 1953, the appellant was arrested and a complaint and warrant were issued in the United States District Court for the Eastern District of Michigan charging him with uttering threats against the President of the United States. On December 9, 1953, the Court ordered the appellant to be committed to the Federal Medical Center at Springfield, Missouri, for observation. On or about June 9, 1954, the District Court for the Western District of Missouri released the appellant on a writ of habeas corpus and ordered him returned to the District Court at Detroit, Michigan. On October 18, 1954, a judge of that Court entered an order conditionally releasing jurisdiction, of the appellant to the Probate Court of Wayne County, Michigan. The Probate Court was to determine the sanity or insanity of the appellant. If found insane the District Court released jurisdiction provided appellant was committed as an insane person in accordance with the statutes (presumably of Michigan). If found to be sane he was to be returned to the District Court for further proceedings.
As a result of proceedings in the Probate Court in January 1955, the appellant was found to be mentally ill and was committed to the Ypsilanti State Hospital as a state charge. About two years later the Department of Mental Health of the State of Michigan transferred the appellant to the Ionia State Hospital for the ■Criminal Insane. This hospital, where the appellant was confined at the time he filed his petition in this case, is within the territorial limits of the Western District of Michigan.
On September 22, 1965, the district judge dismissed the appellant’s petition on the ground that he had not exhausted his state remedies as required by Section .'2254, Title 28, U.S.C. Under date of April 22, 1966, in a supplemental opinion, the district judge recited that the appellant had been transferred on April 1, 1966, to the Ypsilanti State Hospital, at Ypsilanti, Michigan, which was in the Eastern District of Michigan. He thereupon ruled that the petition for writ of ■habeas corpus should be filed in the East■ern District of Michigan.
We conclude that this latter ruling of the court is in error. The District Court for the Western District of Michigan, having jurisdiction of the action at the time the petition was filed, did not lose jurisdiction when the appellant was subsequently transferred to the Ypsilanti State Hospital in the Eastern District of Michigan. Ex Parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243; United States ex rel. Circella v. Sahli, 216 F.2d 33 (C.A. 7), cert. den. 348 U.S. 964, 75 S.Ct. 525, 99 L.Ed. 752. The motion of the appellee to dismiss is denied.
It is claimed on behalf of the appellant that the district judge for the Eastern District of Michigan was without authority to relinquish jurisdiction of him and ■order him transferred to the Probate Court of Wayne County, Michigan, and "that all of said proceedings are of no legal force or effect. It is further claimed that the appellant is entitled to a hearing under Section 4244, Title 18, U.S.C. to determine his competency for trial.
Section 4244, Title 18, U.S.C., provides that when a district judge has reasonable cause to believe that a person charged with an offense is presently insane or so mentally incompetent that he is unable to understand the proceedings against him or to properly assist in his defense, he may on his own motion cause the accused to be examined as to his mental condition by at least one psychiatrist. For this purpose the judge may order the accused committed to a suitable hospital. This statute further provides that if the report of the psychiatrist indicates a present state of insanity or mental incompetency of the accused the court shall hold a hearing and make a finding with respect to the mental condition of the accused. Under Section 4246, Title 18, U.S.C., if the court finds that the accused is mentally incompetent it may commit the accused to the custody of the Attorney General or his authorized representative.
None of the provisions of these statutes were followed in the release of the appellant to the Probate Court of Wayne County. He was not committed to a hospital, no report was returned, no hearing had, and no commitment to the custody of the Attorney General on a basis of mental incompetency.
It is alleged in the petition that the court released jurisdiction of the appellant on condition that if he be found insane the Probate Court would commit him as an insane person in accordance with the statutes. This condition was met and the appellant was found to be mentally ill and committed to the State Hospital at Ypsilanti, Michigan. We conclude from these facts that the district judge, in reality, released the jurisdiction of the court over the appellant and turned him over to state authorities. We know of nothing that would prevent the District Court from so releasing its jurisdiction over the appellant. It is not unusual for state authorities to turn arrested persons over to federal authorities for prosecution or for federal authorities to turn arrested persons over to state authorities. The appellant has now been in state custody as a state charge for more than twelve years and his remedy is to exhaust the procedures provided by the state of Michigan. Sections 27A.4307, C. L.1948, § 600.4307 [P.A.1961, No. 236] and 14.829, M.S.A., C.L.1948, § 330.39 [P.A.1949, No. 313].
The petition does not state a cause of action and the judgment of the District Court is affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond2_3_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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.
CELL ASSOCIATES, INC., a California Corporation, and Leonard Hayflick, an Individual, Plaintiffs-Appellants, v. NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, and Donald Fredrickson, Director of National Institutes of Health, Defendants-Appellees.
No. 76-1978.
United States Court of Appeals, Ninth Circuit.
Aug. 11, 1978.
William A. Fenwick of Davis, Stafford, Reliman & Fenwick, Palo Alto, Cal., for plaintiffs-appellants.
Leonard Schaitman, Atty., Dept, of Justice, Washington, D. C., for defendants-ap-pellees.
Before DUNIWAY, CUMMINGS, and SNEED, Circuit Judges.
The Honorable Walter J. Cummings, United States Circuit Judge for the Seventh Circuit, sitting by designation.
DUNIWAY, Circuit Judge:
Hayflick and Cell Associates brought suit under the Privacy Act of 1974, 5 U.S.C. § 552a (1976), seeking to enjoin the government from releasing two investigative reports prepared by the National Institutes of Health (NIH). The district court denied a motion for a preliminary injunction and this appeal followed. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm the order as to Hayflick and remand with directions to dismiss Cell Associates, Inc., as a plaintiff for lack of standing.
I.
FACTS
The two reports which are the subject of this appeal summarize the results of an investigation conducted by NIH into Hay-flick’s activities as a biological researcher working under contract with NIH at Stanford University between 1968 and 1975. The reports, which were completed and presented to the Director of NIH on January 30, 1976, are entitled “Investigation of Activities Relating to the Storage, Distribution and Sale of Human Diploid Cell Strains, WI-38 and WI-26” (“Cell Report”) and “Investigation of Activities Relating to the Charging of Test Fees Under Contracts Awarded to Stanford University by the National Cancer Institute” (“Mycoplasma Report").
The Cell Report charges Hayflick with committing serious improprieties in his role as principal investigator under an NIH contract providing for the production and distribution of certain human cell cultures which are widely used in vaccine manufacture and medical research. Specifically, the report alleges that Hayflick (1) sold cell cultures developed and produced at government expense for personal gain; (2) violated an agreement with the government by transferring cell cultures from Philadelphia’s Wistar Institute to Stanford University without authorization; (3) distributed cell cultures which he knew to be contaminated; (4) intentionally mislabelled cell cultures; (5) maintained inadequate records; and (6) lost, stole or squandered cell cultures which were in his possession when he commenced research at Stanford in 1968. The Cell Report concludes with recommendations that “a claim be established against Dr. Hayflick for the proceeds from the sales of Government property” and that “consideration be given to removing Dr. Hayflick as principal investigator or other key participant in NIH supported projects.”
The Mycoplasma Report deals with Hay-flick’s activities as principal investigator under a separate NIH contract providing for the establishment and operation of a mycoplasma diagnostic laboratory at Stanford. It alleges that Hayflick improperly charged fees for mycoplasma testing conducted at government expense and then deposited the proceeds in personal accounts and accounts maintained by Stanford University or by Cell Associates, a corporation wholly owned by the Hayflick family. The Mycoplasma Report concludes with recommendations that all such fees, plus interest, be recovered by NIH and that “the practice of charging fees for mycoplasma tests and charging the costs to NIH research agreements ... be discontinued.”
Hayflick received copies of the reports shortly after their completion in January, 1976. He asked for and was given an opportunity to respond to the allegations in writing with a deadline of April 1 within which to do so. On March 17, before Hay-flick had submitted his rebuttal, NIH received two requests for the reports under the Freedom of Information Act. Eventually five requests were received, four from publications, including the New York Times, and one from an individual who used the cells produced in Hayflick’s laboratory in his research. NIH concluded that it was required under the Freedom of Information Act to release the reports. Before doing so, however, it told Hayflick of the requests and that it intended to honor them on March 25 unless a court order prohibiting disclosure were issued by that date.
On the morning of March 25, Hayflick and Cell Associates brought this action under the Privacy Act, seeking (1) preliminary and permanent injunctions barring release of the reports; (2) a temporary restraining order; (3) a declaration that Hayflick was entitled to “all proceeds collected to date . for the sale of human diploid cell material and the sale of mycoplasma testing services;” and (4) damages.
The district court denied the application for a temporary stay on the afternoon of March 25. NIH released the reports to the press that same evening. Through the New York Times Service and various scientific publications, summaries of the reports were widely disseminated. NIH is continuing to release the reports to anyone who asks for them and continues to maintain that it is required to do so.
On April 30 the district court denied the motion for an injunction against disclosure, stating:
I have extreme doubts about the jurisdiction of the Court to issue such an injunction.
If I do have jurisdiction to do so, I find no basis in the record to compel or suggest that the Court should do so. On the balancing of the equities, I would find that the interests of the public and the medical community as a whole is far better served by a free distribution of information that raises questions about the validity of materials that have been put into the scientific community and in general I have extreme doubts about the likelihood of the plaintiffs prevailing in this action and for those reasons, the preliminary injunction will be denied.
II.
STANDING
Subsection (g)(1), “Civil remedies,” of the Privacy Act, 5 U.S.C. § 552a(g)(l) (1976), creates federal claims for relief for enumerated violations of the Act’s substantive provisions and refers throughout only to actions brought by an “individual.” Subsection (a)(2) defines an “individual” as “a citizen of the United States or an alien lawfully admitted for permanent residence.” It is clear that Cell Associates, a corporation formed in 1974, is not an “individual” within the meaning of the statute. We therefore remand, with directions to dismiss Cell Associates, Inc., as a plaintiff for lack of standing under the Privacy Act.
III.
MOOTNESS
The parties do not argue the question of whether the case is moot, but we feel obliged to consider it. It could be argued that because the reports have been distributed to the four newspapers and to some individuals, and widely commented upon in the press, the horse is out of the barn and nothing can be accomplished now by locking the door. However, we reject this argument. NIH still has the reports, and is still willing to permit anyone who asks for them to see and obtain copies of them. Each time that this happens can add to Hayflick’s damages. Under these circumstances, the action is not moot.
IV.
JURISDICTION TO ENJOIN DISCLOSURES
A. The Statutory Scheme.
The “Civil remedies” section of the Privacy Act, subsection (g) of 5 U.S.C. § 552a, links particular violations of the Act to particular remedies in a specific and detailed manner. It lists four types of agency misconduct that give rise to civil remedies
VIOLATIONS
(g)(1) Civil remedies
Whenever any agency
(A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection;
(subsection (d)(3) reads:
Each agency that maintains a system of records shall—
******
(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and . . . complete such review and make final determination . . . and if . . . the reviewing official also refuses to amend the record, . . permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement . . . and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section;”)
(g)(1)
(B) refuses to comply with an individual request under subsection (d)(1) of this section;
(subsection (d)(1) reads:
“Each agency that maintains a system of records shall—
******
(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in'a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s presence;”) and it then states the civil remedies applicable to each. The scheme can best be seen if the violations and remedies are set out side by side:
REMEDIES
(g)(2)(A)
In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual’s record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.
(g)
(3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case, the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.
VIOLATIONS
(g)(1)
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
(Subsection (b) prohibits disclosure of “any record which is contained in a system of records . . except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains . . ” subject to 11 enumerated exceptions.)
REMEDIES
(g)
(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.
Hayflick claims that NIH has failed to comply with subsection (b). Thus his claim for relief arises under subsection (g)(1)(D) and the applicable civil enforcement action is the one authorized in subsection (g)(4). It provides for damages, costs, and attorney fees, where the agency acted in a manner that was intentional or willful. It does not provide for an injunction. There is a further remedy for willfully disclosing material, knowing that disclosure of it is prohibited, a criminal penalty prescribed in subsection (i)(l).
It thus appears on the face of the Act that Congress carefully described particular violations and provided particular procedures and remedies for each of them. In two instances, it provided for injunctive types of relief. See subsections (g)(1)(A) and (2) and (g)(1)(B) and (3), supra. In the other two instances, it provided for damages, but not for injunctive relief. See subsections (g)(1)(C) and (D) and (g)(4), supra.
Presumably, Congress intended to do what it did. This points to a conclusion that Congress did not intend to authorize the issuance of injunctions prohibiting disclosures of protected materials.
[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 73 L.Ed. 379 (1929). This principle of statutory construction reflects an ancient maxim — expressio unius est exclusio alter; us.
National Railroad Passenger Corp. v. National Association of Railroad Passengers, 1974, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646. See also Switchmen’s Union v. National Mediation Board, 1943, 320 U.S. 297, 301, 64 S.Ct. 95, 88 L.Ed. 61; United States v. Babcock, 1919, 250 U.S. 328, 330, 39 S.Ct. 464, 63 L.Ed. 1011. Were Hayflick correct in his contention that injunctive relief is available for violation of any of the Act’s provisions, the detailed remedial scheme adopted by Congress would make little sense. We think it unlikely that Congress would have gone to the trouble of authorizing equitable relief for two forms of agency misconduct and monetary relief for all other forms if it had intended to make injunctions available across the board.
While it is true that equitable jurisdiction conferred by statute “is not to be denied or limited in the absence of a clear and valid legislative command,” Porter v. Warner Co., 1946, 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 a statute may “in so many words or by a necessary and inescapable inference” restrict the availability of injunctive relief. Id. at 398, 66 S.Ct. at 1089. “Congress knows how to deprive a court of broad equitable power when it chooses to do so.” Renegotiation Board v. Bannercraft Co., 1974, 415 U.S. 1, 19, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123. It appears from the face of the statute that injunctive relief to prevent a violation of subsection (b) is like the snakes in Ireland, because the Act makes no provision for it as part of the remedies that it does provide.
B. The Legislative History.
Our examination of the legislative history of the Privacy Act confirms our view that Congress did not intend to authorize the issuance of injunctions prohibiting the disclosure of protected materials. S. 3418, the original version of the Act passed by the Senate, granted broad equitable jurisdiction to the district courts, much like that conferred by the statute involved in Porter v. Warner Co., supra. It provided:
The Attorney General of the United States, ... or any aggrieved person, may bring an action in the appropriate United States district court against any person who has engaged, is engaged, or is about to engage in any acts or practices in violation of the provisions of this Act ... to enjoin such acts or practices.
S. 3418, at § 304(a).
In contrast, H.R. 16373, the House version of the Act, authorized the district courts to enjoin agencies from wrongfully withholding records, as in subsection (g)(1)(B) and (3) of the Act, supra, but provided only monetary relief for other forms of agency misconduct, as in subsections (g)(1)(C) and (D) and (4) of the Act, supra.
Ordinarily, the differences between the two bills would have been resolved by a conference committee. However, “the lateness of the session and the pressures on Members of both bodies due to other pressing legislative business” dictated use of a more expedient procedure. Remarks of Congressman Moorhead, reprinted from the Congressional Record in Committee on Government Operations, United States Senate and Committee on Government Operations, House of Representatives, Legislative History of the Privacy Act of 1974, 94th Cong., 2d Sess. 985-86 (Joint Comm.Print 1976) (“Legislative History"). Accordingly, members of the House and Senate Government Operations Committees met informally and hammered out the compromise bill ultimately enacted into law as the Privacy Act of 1974. (Legislative History at 873, remarks of Senator Percy.)
The two houses adopted, in large measure, the civil remedies section contained in the original House bill. They modified the House bill in one significant respect, however, adding a right to injunctive relief for an agency’s wrongful refusal to correct an individual’s records. (See subsections (g)(1)(A) and (2), supra.) This course of action suggests that Congress deliberately opted for the limited right to injunctive relief provided by the House Bill. In amending the House bill Congress chose to add an agency’s wrongful refusal to amend an individual’s record to the list of violations for which injunctive relief is available. However, it did not add wrongful disclosure of protected materials to that brief list. The addition of a right to injunctive relief for one type of violation, coupled with the failure to provide injunctive relief for another type of violation, suggests that Congress knew what it was about and intended the remedies specified in the Act to be exclusive.
While the right to damages might seem an inadequate safeguard against unwarranted disclosures of agency records, we think it plain that Congress limited injunc-tive relief to the situations described in 5 U.S.C. § 552a(g)(l)(A) and (2) and (1)(B) and (3).
Congress for reasons of its own decided upon the method for the protection of the “right” which it created. If selected the precise machinery and fashioned the tool which it deemed suited to that end. . [I]t is for Congress to determine how the rights which it creates shall be enforced. . In such a case the specification of one remedy normally excludes another. Switchmen’s Union v. National Mediation Board, supra, 320 U.S. at 301, 64 S.Ct. at 97 (citations omitted). See also Santa Clara Pueblo v. Martinez, 1978, U.S. - at — , 98 S.Ct. 1670, at 56 L.Ed.2d 106.
None of the decisions on which Hayflick relies involves a statute comparable to the one before us. In some, the statute, while obviously creating a right, said nothing about a remedy, and the court implied one. Jones v. Mayor Co., 1968, 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 20 L.Ed.2d 1189, construing 42 U.S.C. § 1982; Sullivan v. Little Hunting Park, Inc., 1969, 396 U.S. 229, 238, 90 S.Ct. 400, 24 L.Ed.2d 386, construing 42 U.S.C. § 1982; Bell v. Hood, 1946, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939, construing the Fourth and Fifth Amendments and 28 U.S.C. § 41(1).
The so called reverse Freedom of Information Act (FOIA) cases are of this type. They deal with the exceptions to FOIA set out in subsection (b) of FOIA, 5 U.S.C. § 552 as amended. That subsection simply provides: “This section does not apply to matters that are — ” and then lists 9 categories of matters. Section 552 does not expressly prohibit disclosure of any such matters; it merely provides that FOIA does not apply to them. Under these circumstances, we have great difficulty in accepting the notion that FOIA can be the basis for granting an injunction against disclosure of excepted matters when an agency elects to disclose them, especially when subsection (c) provides:
(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.
Nevertheless, courts have held that FOIA is a basis for issuing an injunction against disclosure of excepted matters. See, e. g., Planning Research Corp. v. Federal Power Commission, 1977, 181 U.S.App.D.C. 33, 39-40, 555 F.2d 970, 976-77; Sears, Roebuck & Co. v. General Services Administration, 1977, 180 U.S.App.D.C. 202, 204-205, 553 F.2d 1378, 1380 -81; Westinghouse Electric Corp. v. Schlesinger, 4 Cir., 1976, 542 F.2d 1190, 1210 13; but see Sears, Roebuck and Co. v. Eckerd, et al, 7 Cir., 1978, 575 F.2d 1197, 1202-03. The right to an injunction is implied; the Act nowhere provides for any remedy against disclosure. This is a far cry from the Privacy Act which, as we have seen, contains detailed prohibitions and detailed remedies, but omits the equitable remedy against disclosure which was contained in the Senate version of the bill.
In some cases the statute involved conferred equitable powers in broad terms, and the court construed the language broadly. Mitchell v. Robert De Mario Jewelry, 1960, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323, construing 29 U.S.C. § 217; Reich v. Webb, 9 Cir., 1964, 336 F.2d 153, 158, construing 12 U.S.C. § 1464(d)(1); Los Angeles Tr. D. & Mtge. Exch. v. Securities and Exch. Comm., 9 Cir., 1960, 285 F.2d 162, 181-82, construing the Securities Act of 1933, 15 U.S.C. § 77v(a) and the Securities Exchange Act of 1934, 15 U.S.C. § 78aa; Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 893-94, construing 42 U.S.C. § 2000e-5(g); United States v. Republic Steel Corp., 1960, 362 U.S. 482, 491-92, 80 S.Ct. 884, 4 L.Ed.2d 903, construing 33 U.S.C. §§ 403, 405. Part III of the opinion in Renegotiation Board v. Bannercraft Co., supra, 415 U.S. at 16-20, 94 S.Ct. 1028, appears to be dictum,-in light of the holding in part IV, at pp. 20-26, 94 S.Ct. 1028. Moreover, the statute there involved, 5 U.S.C. § 552(a)(3), is far less specific and detailed than the provisions of 5 U.S.C. § 552a(g). The case is another one in which the court gives a broad construction to equity powers expressly conferred by the statute.
In some cases the statute provided for damages but said nothing about equitable relief. The court granted such relief, finding it necessary to make the Act effective. Bateman v. Ford Motor Co., 3 Cir., 1962, 302 F.2d 63, 66, construing 15 U.S.C. §§ 1221-1225; Semmes Motors, Inc. v. Ford Motor Co., 2 Cir., 1970, 429 F.2d 1197, 1206, similar (dictum); Action v. Gannon, 8 Cir., 1971, 450 F.2d 1227, 1237-38, construing 42 U.S.C. § 1985(3). The Privacy Act is not such a statute. It provides for some equitable relief, but not in this type of case.
One case is not remotely in point, and is cited only for a bit of obiter dictum that appellants’ counsel seems to like. Stringer v. United States, 5 Cir., 1973, 471 F.2d 381.
C. Conclusion.
We conclude that the district court was not authorized under the Privacy Act to enjoin disclosure of the Cell and Mycoplasma Reports and correctly so held. In light of our decision, we need not consider the government’s arguments that the reports do not fall within the coverage of the Privacy Act and that the district court did not abuse its discretion in concluding that the public interest in dissemination of the reports outweighed Hayflick’s interest in preventing their disclosure.
As to the appellant Hayflick, the order is affirmed. As to the appellant Cell Associates, Inc., we remand to the district court with directions to dismiss the action as to Cell Associates, Inc.
. During t.he debates over the proposed compromises, Senator Ervin placed a document entitled “Analysis of House and Senate Compromise Amendments to the Federal Privacy Act” in the Congressional Record. The analysis spells out the intent of the House and Senate legislation and explains the nature of the compromises effected. The House bill, it notes, would have permitted an individual to seek an injunction “only to produce his record upon a failure of an agency to comply with his request.” Under the Senate bill, by contrast, “injunctive relief would be available to an individual to enforce any right granted to him.” The final bill represents a compromise between the two positions, expanding the House bill to permit an individual “to seek injunctive relief to correct or amend a record maintained by an agency.” Legislative History at 861-62. A similar analysis was placed in the Record by Congressman Moorhead during House consideration. Legislative History at 987, 989-90.
Question: This question concerns the second 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_judgdisc
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
The HAVERHILL GAZETTE COMPANY, Appellant, v. UNION LEADER CORPORATION, Appellee. UNION LEADER CORPORATION, Appellant, v. The HAVERHILL GAZETTE COMPANY, Appellee.
Nos. 6175, 6191.
United States Court of Appeals First Circuit.
June 8, 1964.
Robert H. Goldman, with whom Frank Goldman, Lowell, Mass., Joseph F. Bacig-alupo, Lawrence, Mass., and Goldman, Goldman & Curtis, Lowell, Mass., were on brief, for The Haverhill Gazette Co.
James M. Malloy and Ralph Warren Sullivan, Boston, Mass., with whom Mal-loy, Sullivan & Sullivan, Boston, Mass., was on brief, for Union Leader Corp.
Before HARTIGAN and ALDRICH, Circuit Judges, aud GIGNOUX, District Judge.
ALDRICH, Circuit Judge.
These cross-appeals by the Haverhill Gazette Company (Gazette) and Union Leader Corporation (ULCo) from a final judgment in Gazette’s favor following the confirmation of a master’s report mark the third time this case has been before us. In Union Leader Corp. v. Newspapers of New England, Inc., 1 Cir., 1960, 284 F.2d 582, cert. den. 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744, we affirmed a decree granting an injunction against ULCo forbidding certain conduct in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, but vacated the decree insofar as it granted relief in ULCo’s favor. In In the Matter of Union Leader Corp., 1 Cir., 1961, 292 F.2d 381, cert. den. 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190, we affirmed the action of the district judge in charge of the case in refusing to disqualify himself in response to an affidavit of prejudice. Following this the district court referred the suit to a special master for a determination of the damages caused Gazette by ULCo’s wrongful conduct. The master found single damages in the amount of $29,442. The court overruled Gazette’s objections to the report and entered a judgment in Gazette’s favor for $88,326 (the trebled amount) together with $60,000 as statutory attorneys’ fees and $8,000 expenses. Gazette’s appeal alleges the damage findings to have been grossly inadequate. ULCo appeals from the award of counsel fees. It also objects to the failure of the court to consider one of the grounds on which it claims that Gazette, or more exactly the purchaser of all of Gazette’s common stock, Newspapers of New England, Inc., and others, were themselves guilty of violating sections 1 and 2 of the Sherman Act, and section 7 of the Clayton Act, 15 U.S.C. § 18. This opinion will be concerned only with Gazette’s appeal.
The facts, many of which were recited in detail in our first opinion, will be referred to in part as we proceed. The basic fact we now start with is that Gazette entered the damage hearing with comprehensive findings in its favor indicating serious and continuous illegal activity of many sorts by ULCo over a period of years, and “stupendous losses,” whether or not as a result of ULCo’s wrongdoing, and wound up with a finding of damages in an amount of comparative insignificance. Gazette contends, inter alia, that this resulted from the master’s erroneously “compartmentalizing” the issues, citing Continental Ore Co. v. Union Carbide & Carbon Corp., 1962, 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777, and placing too severe a burden upon it as to each item and, further, by disregarding the findings of the district court. ULCo, on the other hand, takes the position that the findings of the master are to be accepted unless plainly wrong, and that they were not.
Because it has an important bearing on precisely what was before the master and the scope of the inquiry open to him, we must consider the prior proceedings with some particularity. At the time of the referral the posture of the case was superficially usual, but actually highly unusual. The issues initially tried to the court were stipulated to be “every issue pertinent to the granting or refusing of an injunction,” and “every issue of liability.” The trial, exclusive of substantial preliminaries, lasted two weeks. It resulted in an opinion containing a comprehensive summary of findings, pursuant to which the court entered a “Partial Final Decree.” Consistent with the stipulation the decree recited,
“11. Pursuant to Rule 54 of the Federal Rules of Civil Procedure, 28 U.S.C., this Court expressly determines that there is no just reason for delay in entering final judgments on the following claims:
# -Jr VC
all claims for injunctive and declaratory relief. * * * ”
It thereupon entered “final judgments” with respect to all paragraphs of its order except the reserved damage claims. It added,
“However, if an appellate court should regard these orders not as final but as interlocutory, and if the parties would not have the benefit of the appeals available under 28 U.S.C. § 1292(a) (1), this Court, in accordance with 28 U.S.C. § 1292(b), is of the opinion that the orders in paragraphs 1, 2, 3, 4, 5, 8, 9, 10, and 11 involve a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
Our first opinion did not discuss the question whether, or to what extent, the partial decree was final or interlocutory. In its order of reference, following our affirmance, the district court stated, “The only issues now being left for adjudication relate to damages. These are precisely analogous to issues of damages which would be raised in patent, copyright, and like cases following an appellate adjudication on issues of liability. Such cases are customarily referred to a Master for the ascertainment of damages.”
It is here that the difficulties, and they are serious, commence. Except for the sometime question of increasing the damages because of the nature of the infringement, 35 U.S.C. § 284 (a matter the statute reserves exclusively for the court in all cases), the issues of patent infringement and damages are separate and clear-cut. Although ascertainment of damages may involve difficult questions of apportionment, see, e. g., Gotham Silk Hosiery Co. v. Artcraft Silk Hosiery Mills, Inc., 3 Cir., 1945, 147 F.2d 209, cert. den. 293 U.S. 595, 55 S.Ct. 109, 79 L.Ed. 688, there is no overlapping of the issues determined by the court, finally, 28 U.S.C. § 1292(a) (4), and those referred. In a private antitrust action liability and damages are not separate. Granting that an injunction may require a finding of merely threatened loss, 15 U.S.C. § 26, a partial decree on all issues of liability, however considered, implies much more. One cannot think of private liability for violation of the antitrust laws except in terms of impact and damage. See, e. g., Stearns v. Tinker & Rasor, 9 Cir., 1958, 252 F.2d 589, 605-606, cert. den. 350 U.S. 830, 76 S.Ct. 62, 100 L.Ed. 741; Freedman v. Philadelphia Terminals Auction Co., 3 Cir., 1962, 301 F.2d 830, cert. den. 371 U.S. 829, 83 S.Ct. 40, 9 L.Ed.2d 67; Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 1936, 85 F.2d 742, 750, cert. den. 299 U.S. 613, 57 S.Ct. 315, 81 L.Ed. 452; Glenn Coal Co. v. Dickinson Fuel Co., 4 Cir., 1934, 72 F.2d 885, 887. Indeed, the district court itself, in its opinion confirming the report, stated that its original judgment had “determined” that ULCo’s “invasion [of Gazette’s rights] caused Haverhill Gazette to suffer damages.” The master at one point had recognized this determination, stating that a certain finding “embodie[d] a conclusion by the District Judge that the wrongful acts of ULC inflicted some substantial damage upon the Gazette.” Yet although this was. what the master said the court had found, and what the court agreed it had found, we discover that in its original opinion the court said that it was “not concerned with the assessment of damages, if any.” The master, with similar ambivalence, stated that the reference permitted him full latitude to determine “the precise nature and scope of the damage,” and a careful study of his report reveals that this meant to him, too, “damage, if any.”
Thus we have the situation of the district court’s entering not merely a permanent injunction, but a decree of liability which it labelled final, following an apparent finding of damage which, legally, would seem a necessary prerequisite. Yet at the same time the master was thought free to find the damage, if any, untrammelled by what went before to the point, as the court put it in its opinion confirming the report, of making an “independent and fresh appraisal on factual issues of causation and damages.” Indeed, so “independent” was the master that the court held that while “he reached findings which do not square with statements made by this Court and by the Court of Appeals,” his findings must be accepted unless “clearly erroneous.” However, there had become applicable, if the decree of liability is to be considered final, the principle of collateral estoppel, Partmar Corp. v. Paramount Pictures Theatres Corp., 1954, 347 U.S. 89, 74 S.Ct. 414, 98 L.Ed. 532, making, in effect, conclusive as between the parties the “essential,” Yates v. United States, 1957, 354 U.S. 298, 336, 77 S.Ct. 1064, 1 L.Ed.2d 1356; prior findings. The Evergreens v. Nunan, 2 Cir., 1944, 141 F.2d 927, 152 A.L.R. 1187; 65 Harv.L.Rev. 818, 842-43.
Enough has been said to demonstrate that at least insofar as the court’s partial decree is regarded as final there are serious internal conflicts. While aspects of the decree must be accorded finality we think it preferable under the circumstances to consider the decree of liability as merely interlocutory. This is the usual rule when liability is determined separately; a decree of liability which excludes damages is normally not a final decision. The Palmyra, 1825, 10 Wheat. 502, 6 L.Ed. 375; Craighead v. Wilson, 1855, 18 How. 199, 15 L.Ed. 332; McGourkey v. Toledo & Ohio C. Ry., 1892, 146 U.S. 536, 13 S.Ct. 170, 36 L.Ed. 1079; 6 Moore, Federal Practice ¶ 54.13 at p. 125 (2d ed. 1953); Restatement, Judgments § 41 (comment a) (1942); cf. F.R.Civ.P. 56(c) expressly recognizing a summary judgment of liability alone as interlocutory. The Rule 54(b) certification, which was effective to make appealable under 28 U.S.C. § 1291 the court’s decision on claims finally disposed of, could not affect the interlocutory character of the partial disposition of the treble-damage claim. See Sears, Roebuck & Co. v. Mackey, 1956, 351 U.S. 427, 435, 437, 76 S.Ct. 895; 6 Moore, op. cit. supra, ¶ 54.30[1], at p. 232, n. 12.
On an interlocutory basis the court’s findings as to damages, whether express or implicit, are subject to revision. However, as to one issue there has been a final judgment, and with respect thereto collateral estoppel must apply. Our decision on the first appeal ordering ULCo’s complaint dismissed was upon the ground that the district court’s finding of substantial advertising discriminations, dealt with on proper principles, amounted, on the court’s subsidiary findings, to legal justification for defensive retaliation in kind by Gazette. This dismissal constituted, inescapably, a final judgment, cf. Smith v. Vulcan Iron Works, 1897, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810, and ULCo stands bound by the essential underlying factual determination. At the outset of his report, after discussing this issue, the master correctly concluded that with respect to discriminá-tions the record stood that “the wrongful acts of ULC inflicted some substantial damage upon the Gazette.” However, seemingly because of an interpretation which we could not agree with he concluded that collateral estoppel was inapplicable, and that Partmar was “dispose [d] of.” We can not agree. The finding of substantial damage done to Gazette by ULCo’s acts of discrimination was essential to the judgment dismissing ULCo’s original action. This finding must remain for all purposes of the case. The dollar amount, of course, was not found, or even that this damage was ascertainable in dollars, but that is something else.
Although we conclude that with respect to ULCo’s other illegal activities the master was free to find facts overriding the court’s decree of liability construed as interlocutory only, it does not follow that the present report in this regard is to be accepted. In the first place, we do not agree that the “clearly erroneous” rule applies uniquely to the master’s findings. Rather, the prior findings of the court were themselves entitled to consideration, and there was a burden on the master to be met before finding as to any issue embraced in or underlying the earlier decree, even though interlocutory, that the court was wrong, a burden which neither he, nor the court subsequently, recognized. Furthermore, we find it difficult to agree with the court in its opinion confirming the report that the master had not been unduly hard to convince. By this we mean that we are not satisfied that he did not charge himself erroneously. Certainly he did not vocalize our caveat in Momand v. Universal Film Exchanges, Inc., 1 Cir., 1948, 172 F.2d 37, at 43, 42, cert. den. 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118, that while “a fair degree of certainty is still essential to show the causative relation of defendants’ misconduct and plaintiff’s injury,” yet “in an antitrust suit, covering as it must many imponderables, rigid standards of precise proof would make a plaintiff’s task practically hopeless.” It is more than arguable that he did not apply it. At the least it can be said that in discussing the evidence the master gave more open consideration to ULCo’s evidence and the negative aspects of Gazette’s than to the more favorable features of Gazette’s case. The fact, for example, that various advertisers could not, or would not, in 1962, recall that they were importuned by union members to use the Journal and not the Gazette, received much attention, and the contrary testimony of the representatives none. Similarly, the advertisers’ testimony regarding lack of contact by the eight merchants, so-called, whom the court found Loeb illegally and “immorally” hired to act as apparently disinterested solicitors, was emphasized to the extent of not even referring to the testimony of some of the merchants themselves that for a period of nearly twenty months they spent, individually, up to forty hours a week making such contacts. Nor did the master deal with the likelihood that the eight merchants did exactly what they said they did, not merely because they were paid, collectively, some $30,000 by Loeb for so doing, but because they were promised $1,000,000 and a quarter interest in the Journal if the Journal was successful in putting Gazette out of business. This truly extraordinary contract, and what might seem to be inevitable consequences, was dismissed in silence as the master concluded that (beyond effects on advertising of their own enterprises) the merchants’ activities were so ineonsequential as not to produce a single dollar. While there is no obligation to discuss all of the evidence, cf. United States v. Yellow Cab Co., 1949, 338 U.S. 338, 340-342, 70 S.Ct. 177, 94 L.Ed. 150, in total this was a substantial omission, particularly in the light of what had apparently been previously credited by the court. It is also relevant in view of our doubts as to the burden the master placed upon Gazette.
These other doubts take form because of the master s frequent use of the phrases sole or predominant cause,” and a more substantial cause of harm than any other known cause. ^ While he did this only in connection with rejecting, at the outset of his report, Gazette s interpretation of one particular statement in the court s opinion, and the master s ultimate conclusion was_ correct, his use of an<^ rehance upon this standard of causation was wrong. The fact that he never enunciated another strongly suggests may have employed the same standard throughout his report.
In using this standard the master purported to rely upon the decision of the district court in Momand v. Universal Film Exchanges, Inc., D.Mass., 1948, 72 F.Supp. 469, noting that the judgment had been affirmed. He failed to note) however, that “sole or predominant» was not the rule that we stated on the appeal. Judge Goodrich, speaking for the court, returned to the Restatement and said, 172 F.2d at 43, “[T]he usual rule in tort is that a plaintiff may recover for loss to which' defendant’s wrongful conduct substantially contributed, notwithstanding other factors contributed also. Restatement, Torts § 431 (1934).” The difference between a “substantial” cause and one “more substantial than any other” is manifest. If the master put a burden on Gazette, as it may well be he did, to eliminate all proper causes for the shifting of advertising from Gazette to the Journal to the extent of affirmatively showing that the illegal causes were the sole or most substantial, we consider this too favorable treatment of a deliberate wrongdoer. If anything is clear in this case it is that the Gazette’s union difficulties in a strongly union area were what furnished ULCo the opportunity to initiate and continue the Journal. From the outset it capitalized upon this by illegal means, purposely and effectively designed to take advertising from the Gazette. After the strike was settled (and passing the question of whether ULCo’s conduct may not have extended the date) ULCo engaged in massive illegal assaults upon Gazette’s advertisers, discussed supra, which were considered, in ULCo’s opinion, at least, of such extraordinary value. Certainly they, too, were expressly designed to accomplish exactly the losses which Gazette in fact suffered. For ULCo thereafter to be able to say, “Prove exactly what you lost and that it would not have been lost, anyway,” would be to admit to a legal ineffectiveness that we should regret to contemplate. In our opinion it is enough to warrant the master in finding general damages that Gazette should show merely a substantial cause, rather than a cause more substantial than any other. While the master considered finding general damages, and declined to do so, we cannot tell under what circumstances he contemplated it, and the burden he imposed upon Gazette. Iiis reference to the principle enunciated in Bigelow v. R. K. O. Radio Pictures, Inc., 1946, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652, that the risk of uncertainty should fall upon the wrongdoer, had attached to it the condition that “the difficulties of proof [must be] * * * the result of ULC’s unlawful acts,” (which he found they were not). Particularly in the sense that he used it, this was a far too narrow reading of Bigelow.,
We turn, finally, to Gazette’s largest claim, that ULCo is responsible for all losses caused by the Journal’s very existence because the Journal was founded upon, and continued in, unlawful conduct of a most substantial nature. The master recognized this as a valid issue and defined it at the outset of the report.
“[I]t is conceivable that ULC would not have entered the Haverhill market, or remained there throughout the damage period, had it not enjoyed the benefit of its own wrongdoing. This possibility must be explored in order to make a thorough assessment of damages, for the early departure of the Journal from Haverhill would have materially improved the position of the Gazette.” (Ital. suppl.)
It must be clear that whether any particular unlawful conduct was instrumental in causing the Journal to enter or remain in Haverhill must be determined by the effect that it had upon Loeb, ULCo’s president and policymaker. If, in Loeb’s mind, it was necessary to engage in particular acts in order to warrant remaining in business, then, in the true sense, those acts caused his being in business. This must have been so regardless of whether, in point of fact, he was correct in his appraisal. If, for example, Loeb felt that it was essential to obtain illegal assistance from the union in order to continue in business, it follows that his decision to continue, and hence his continuing, resulted from his success in accomplishing this unlawful act. The question is not whether, viewed from hindsight, the union cooperation did him any essential, or, indeed, any material good. The master made this analysis at the outset, and properly addressed himself to what was Loeb’s state of mind when deciding whether to enter Haverhill initially, finding, on this issue, against Gazette. He then, however, abandoned this approach, and applied a strict benefit-received rule, viewed, moreover, not as he concluded Loeb viewed it at the time, but as it appeared to the master in the light of the damage testimony which he credited. The issue, he stated, was simply whether Loeb would have stayed had he in fact not received the specific advertising benefits which Gazette had succeeded in establishing to the master’s satisfaction.
Passing the extent to which the master erred in finding these benefits too small, the ultimate question must be not what benefits the master found in 1963, but what Loeb thought in 1958 and 1959. Moreover, even if Loeb’s appraisal of the affirmative dollar benefits received coincided exactly with the master’s, it still may have been that he believed that his losses would have been greater but for his illegal activities, or persistently took an optimistic view that matters would improve, which, absent these activities, he would not have entertained. The master’s substantial misinterpretation and limitation of this issue was clear error.
There must be a new trial. Because of several of the matters discussed herein we find it impossible to separate what findings were infected by error. We accordingly vacate the report in its entirety. Furthermore, we believe that the damage issues should be submitted to a new trier. Where a trier of fact has been corrected for a number of serious errors there are bound to be strains on a second trial, conscious or unconscious, irrelevant to the issues, and hence disruptive. One may think one was not really wrong, and hence resist, consciously or otherwise, the new rules, or, conversely, lean over backwards. Alternatively, if one fully accepts the new principles it may be natural to over-emphasize them. Because of this we have sometimes remanded a case for trial before another judge, not as a reflection on the first, but to avoid such complications. This is particularly important where a prior error related to the quantum or burden of proof. Murray v. United States, 1 Cir., 1962, 300 F.2d 804; Commissioner of Internal Revenue v. Young Motor Co., 1 Cir., 1963, 316 F.2d 267.
Judgment will be entered setting aside the judgment of the District Court and ordering the report of the special master to be vacated. Further proceedings to be not inconsistent with this opinion.
. Since renamed Haverhill Publishing Co., Inc.
. In view of our present disposition, the size of the award of counsel fees becomes moot, as doubtless the court will wish to reconsider that matter at a later date under the new circumstances. With respect to ULCo’s contention as appellant on the merits, this is something that, so far as this litigation is concerned, should have been presented on the original appeal from a judgment, finding no liability and denying relief as to the relevant separate claims, which was specifically stated by the district court, upon the determinations required by F.R.Civ.P. 54 (b), to be final. Cf. Sears, Roebuck & Co. v. Mackey, 1956, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297; Cold Metal Process Co. v. United Eng’r & Foundry Co., 1956, 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311; Bendix Aviation Corp. v. Glass, 3 Cir., 1952, 195 F.2d 267, 38 A.L.R.2d 356. We do observe, however, that ULCo’s brief appears to rest upon a misconception of the district court’s pretrial statement. The court did not say that “any evidence offered as to an outside market would be excluded,” but merely indicated that it was “probable” that it would regard such evidence as unnecessary. This was not a ruling on which one could base rights. We will not now consider whether the matter in question was as fully tried out as it could have been.
. ULCo’s brief describes it as “relatively microscopic.”
. “[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * Clayton Act § 4, 15 U.S.C. § 15 (ital. suppl.). Private antitrust actions are not founded upon showing of unlawful conduct only, but upon injuries, to the protected interests, which are the legal result of the overt illegal acts.
. There were three principal matters involved in the court’s decree; the improper use of union representatives in connection with calls by ULCo’s advertising solicitors in which advertisers were urged to boycott the Gazette; secret rate and other advertising discriminations, and illegal contracts with the eight merchants, so-called, by which the merchants were to give all of their advertising to the Journal and were, posing as ostensibly disinterested parties, to boost the Journal and disparage the Gazette and persuade other businessmen to advertise exclusively in the former. The master found no damages whatever as a result of the first two illegal activities, and none with respect to the eight merchants except as to their own exclusive use of the Journal. Even as to this last the master carefully examined the evidence and indicated no awareness of any obligation, as the result of the court’s prior findings, to find “substantial damages,” or even any damages. We will deal with these matters later at more length.
. That the judgment disposed of all issues on separate trial under F.R.Civ.P. 42(b) would, of course, affect neither finality nor appealability, Atkins, Kroll (Guam), Ltd. v. Cabrera, 9 Cir., 1960, 277 F.2d 922. We find it unnecessary to determine whether our jurisdiction on the prior appeal to review the decisions of liability was based upon 28 U.S.C. § 1292(b), or upon the broad principle recognized in Smith v. Vulcan Iron Works, 1897, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810.
. The master felt that although there was a finding that damage was “inflicted” upon Gazette, this was not a finding “that ULC’s -wrongful acts were the sole cause or even the predominant cause of injury.” Passing the question of just what injury this meant, and whether it expressed a proper standard of causation, a matter considered more broadly infra, it cannot be that the court’s finding of substantial harm to Gazette as a result of TJLCo’s discriminations meant harm for which ULCo was not legally responsible.
. We might say, in passing, that quite apart from the binding effect of the court’s finding that Gazette was injured by TJLCo’s discriminatory conduct, we have great difficulty in understanding how the master reached his contrary factual conclusion. To take, as one example, the J. M. Fields matter, which the court has described as “most important,” and a “serious discrimination,” this involved, in part, a discriminatory guarantee not to raise the rate for two years, which the master found was “a substantial factor” in taking the business from Gazette. The master nevertheless found no damage, not merely that he could not measure it. As an “important” reason the master referred to the fact that the guarantee was never exorcised. We do not follow the reasoning, and without going into details, we do not understand the findings. We would ask, inter alia, what was TJLCo’s point, on the master’s analysis, of giving the guarantee at all?
. There are a number of circumstances, notably the reception of new evidence, under which our affirmance of the interlocutory decree would not constitute a bar to redetermination of the question of liability in the court below. See, e. g., Toucey v. New York Life Ins. Co., 8 Cir., 1940, 112 F.2d 927, 928, rev’d on other grounds, 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967; Western Fire Ins. Co. v. University City, 8 Cir., 1942, 124 F.2d 698; cf. Alexander v. Nash-Kelvinator Corp., 2 Cir., 1959, 271 F.2d 524, 526.
. One of the fundamental difficulties in this case, which we do not fully reach because the parties did not question the propriety of reference vel non, is the extent to which the master, as a different trier sitting on the damage hearings, not only could take new evidence, but could give different weight to evidence or make very different findings of credibility. Where the issues are to some extent interwoven or overlapping in such separate proceedings this may cause grave difficulties. See, e. g., Gasoline Prods. Co. v. Champlin Ref. Co., 1931, 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188, and United Air Lines, Inc. v. Wiener, 9 Cir., 1961, 286 F.2d 302, cert. den. 366 U.S. 924, 81 S.Ct. 1352, 6 L.Ed.2d 384 (involving, additionally, questions of right to jury trial). Under present circumstances we adopt the rule above stated.
. We do not think it necessary to distinguish to what extent the merchants may have “talked-up” the Journal as opposed to soliciting specific advertising or obtaining actual contracts.
. No mention, either, was made of the court’s finding that the result of this contract was “to intensify * * * zeal * * * to support The Journal by securing advertising for it and to discourage advertising in The Gazette by * * * enterprises subject to their influence,” and Loeb’s significant testimony. “XQ. And they assured you they would get as much advertising business for you as they possibly could, didn’t they? A. Yes. XQ. And thy did that, didn’t they? A. Yes.” If in this vital matter Leob was not merely misled, but totally mistaken, we think it was at least incumbent on the master to explain his mistake.
. 13. The court had stated that Gazette had been put in peril of ms°lvency ™ the seMe as a leso“ of ULC’S at' tempt to monopolize.” Gazette endlessly seeks to magnify this. While, concedbly’ tbe coufs la»gaage was * is obvious that ULCo was not the sole aause f Gazette * difficulties, and that Gazette s construction is not only mconmstent with the facts, but with the entlre balance of tbe eoarts oplmon-
. It is perhaps not altogether clear what the district eourt held. It is true that it did use the second of the two phrases quoted supra. However, the opinion began with a reference to section 912 of the Restatement of Torts to the effect that what was required was “proof that the tortious conduct was a substantial factor in causing such harm,” 72 F.Supp. at 478, a much lesser requirement. Elsewhere the court stated that if “segregation and admeasurement of the cause[s] of loss [were] impossible” (seemingly apposite, on the master’s opinion, to the case at bar, see infra) various phrases might be used to define the burden of showing causality, including “preponderant,” “dominant,” “main,” or “a substantial,” and that it would not “try to decide which of the quoted phrases is correct * *
. See fn. 17, infra.
. “The degree of certainty required of a plaintiff in proving causation of damage * * * varies with the nature of the ease.” Momand v. Universal Film Exchange, supra, 172 F.2d at 42; see Note, The Requirement of Certainty in the Proof of Lost Profits, 64 Harv.L.Rev. 317, 319 (1950). A degree of uncertainty may always be permitted, especially when the circumstances make it particularly likely that the claimant suffered loss at the wrongdoer’s hands. Cf. Bigelow v. R. K. O. Radio Pictures, Inc., 1946, 327 U.S. 251, 66 S.Ct. 574; Clark, The Treble Damage Bonanza: New Doctrines of Damages in Private Antitrast Suits, 52 Mich.L.Rev. 363, 367-93 (1954), Note, Antitrust Enforcement by Private Parties: Analysis of Developments in the Treble Damage Suit, 61 Yale L.J. 1010, 1016-19, 1025-26 (1952). In the antitrust case at bar uncertainty of cause is much less than it would be in the ordinary multi-competitor situation because until the Journal appeared in this admittedly one-newspaper area Gazette had no competition, and if the Journal had ceased publication it would have reverted to that status. In a very arguable sense whatever the Journal took, particularly after the strike ended, Gazette lost. This is, in other words, a harsh case in which to conclude, after proof of substantial violations of the antitrust laws directed at the claimant, that there was an unsatisfied burden of showing any legal damages because of some rigid rule of causation. The question is not primarily one of showing damage, but one of the extent of damage where there are multiple causes, none susceptible to precise measurement, which are in source independent and yet interact upon each other in producing injury. We note in the Restatement of Torts (1939), relied upon broadly in Momand, and by the master as well, that in a case where the damages cannot be precisely calculated because of the interaction of concurrent causes, there is no burden of excluding all other causes of loss, and that estimates based upon such evidence as is “reasonably available” under the circumstances
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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.
CHICAGO RAILWAY EQUIPMENT CO. v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 4225, 4226.
Circuit Court of Appeals, Seventh Circuit.
March 27, 1930.
William S. Oppenheim, of Chicago, Ill., for appellant.
John V. Groner, of Washington, D. C., for appellee.
Before ALSCHULER, PAGE and: SPARKS, Circuit Judges.
PAGE, Circuit Judge.
No. 4225. In Chicago Ry. Equipment Co. v. Blair, 20 F.(2d) 10, where most of the facts appear, we reversed the order of the Board of Tax Appeals (Appeal of Chicago Ry. Equipment Co., 4 B. T. A. 452), which, sustained assessments of additional taxes for the years 1917, 1918, and 1919.
On the second hearing, the Statute of Limitations was pleaded, new evidence was taken, an order sustaining the assessments entered, and petitioner again asks for a reversal.
That the assessments for the years 1917' and 1918 were made after the statute had run,, unless saved by waivers, is admitted. Petitioner admitted a waiver on December 10,. 1925, long after the statute had run.
The Board has held that the burden is upon the Commissioner to prove a waiver. Bonwit Teller & Co. v. Commissioner, 10 B. T. A. 1300; Farmers Feed Co. v. Commissioner, 10 B. T. A. 1069; Stevens v. Commissioner, 14 B. T. A. 1120. Respondent offered no evidence of a waiver. The evidence shows the waiver of December 10, 1925, and two letters written to petitioner by the Revenue Department, both after the statute as to the 1917 and 1918 taxes had run, stating that waivers had been filed.
The Board held the assessments legal on the theory that: (a) The statements in the letters were evidence that waivers had been made; (b) a waiver at any time is a sufficient basis for an assessment.
We are of opinion that the letters were not even evidence that waivers had been made, and certainly they were no evidence of the time when they were made, or when they expired, or of any other fact. Such waivers were so obviously a part of respondent’s ¡case that the only inference to be drawn from 'his failure to produce them is that they did not exist.
It is urged, on authority of Insley Mfg. Co. v. Thurman, 33 F.(2d) 441, decided by This court, that a waiver, after the statute has •run, is good. While in that ease there was .such a waiver, it was made while a former waiver, made before the statute had run, was still in force. The question here was not "there decided, nor was it before us.
In Pictorial Printing Co. v. Commissioner, 38 F.(2d) 563, decided February 28,1930, we had before us the question as to whether .a waiver, made at a time when the Commissioner had no authority to assess the tax in question and the taxpayer was under no obligation to pay it, had any force. We there held that no valid waiver was shown, and we .here hold that the statute had run as to the 1917 and 1918 assessments. No such error is assigned as to the 1919 assessment.
It is urged that the Board erred in fixing The March 1, 1913, fair market value of pe.titioner’s properties, consisting of large factory buildings and equipment, located in five .states.
The plants were bought between 1892 and 1912, from older concerns, some of them from receivers or trustees, and at prices much below the original cost. From time to time large sums of money were -spent upon the properties for buildings, renewals, and repairs.
Appraisals prior to 1913 showed a property value of $334,244.09" greater than the cost of the properties to petitioner, and the book values were increased by that sum.
Respondent, apparently ignoring the question of March 1,1913, fair market value, proceeded to find the cost of the properties on December 31, 1916. The parties undertook before the Board to establish the March 1, 1913, market value.
The evidence before the Board shows several sets of figures bearing upon values.
(1). It is admitted that the cost of the properties as of Dee. 31, 1916, was..............$1,384,034.11
There was expended on the properties between Jan. 1, 1913, and Dee. 31, 1916.....$ 385,441.05
So that the cost March 1, 1913, was, .....................$ 998,593.06
If we add the amount put on the books because of the appraisals prior to 1913 and above referred to,..........$ 334,244.09
We have, as the March 1, 1913, undepreciated value, as shown by those figures,...........$1,332,837.15
Four of the appraisals prior to 1913 were made as early as 1908, and the last one in 1912. The above figures aid but little in finding the March 1, 1913, market value.
(2). Coats & Burchard, between Nov. 27, 1915, and Feb. 1, 1916, appraised all of petitioner’s properties. Those appraisal books are not before us, but the appraisals purport to show the reproduction cost, new, of all properties at that time. Such cost was, .....................$1,720,884.47
By deducting additions for 1913, 1914 and 1915, amounting to, $ 326,130.75
We have the March 1,1913, reproduction value, as,........$1,394,753.72
Forward testified he thought Coats & Burchard depreciation figures were...’........$ 262,000.00
So’ that, on those figures, the March 1, 1913, depreciated value was, ................$1,132,753.72
(3) . Petitioner’s president Leigh testified that he knew the fair cash market value of the properties March 1, 1913, and stated that it was $1,536,323. Forward testified that the properties on that date were worth $1,584,926.13 — some $48,000 higher than Leigh. If Leigh gave the details of his figures, we have not been able to identify them. He did, however, give what he said were figures in the Coats & Burehard appraisals, showing a total of $1,782,939. He testified that those figures represented the fair reproduction value of those properties at that time. If we deduct the additions in 1913, 1914, and 1915, $326,130.75, there remains as of March 1, 1913, $1,456,808.25, as Leigh’s idea of the Coats & Burehard 1913 reproduction value. That was nearly $100,000 less than Leigh testified was the March 1, 1913, fair cash market value. Leigh had not appraised the properties. His testimony, above referred to, may be explained by his testimony elsewhere — that he did not think there was much difference between the fair market value and the reproduction value. He also said his figures were identical with Coats & Burchard’s. Forward’s situation is much the same as Leigh’s. He testified: “I have not made any independent appraisal of any property other than on eertain items in the plant.” He took his figures from- the books and appraisals made by others..
(4). The record shows various balance sheets, beginning in 1908, that purport to show gross reproduction values. Depreciation reserves are there stated in gross. The Board had before it the details of those balance sheets, but they are not before us.
With their appraisal, Coats & Burehard prepared a depreciation sheet that was in petitioner’s possession, but that was not offered in evidence before the Board on either hearing. The presumption is that it was unfavorable to petitioner. This presumption is strengthened by the fact that the Coats & Burehard figures, on one Chicago property, show a depreciation of about 25 per cent. All properties, figured on that basis, would show a depreciation much greater than the amount stated by Forward to be his recollection of what the Coats & Burehard depreciation figures showed.
The Board gave full consideration to all the evidence, and out of all the conflicting evidence reached a conclusion as to the 1913 market value that must’be sustained.
For the purpose of arriving at the taxable value of the plant equipment, it was agreed that equipment classed as “power” should be depreciated 5 per cent., and that classed as “machinery and tools” 10 per cent. Petitioner’s complaint is that $239,677.35 worth of equipment that should have been classed as “machinery and tools” was erroneously classed as “power,” thereby depriving petitioner of a 5 per cent, depreciation on that amount.
In arriving at a proper depreciation percentage on such a large amount of equipment, located in five different states, it is quite manifest that the useful life of individual items could not be determined. Coats & Burehard, in their appraisal, listed 29 lots. Some of those lots are: Electric lighting system, $15,624.69; flasks, $35,092.05; furnaces and forges, $130,551.21; miscellaneous, $40,857.79, etc. • No detail is before us. Possibly the first item is power. Without further information, it is doubtful if anyone could, with a feeling of confidence that he was right, say to which class the other three lots should be assigned. It was necessary, arbitrarily, to make classes into which the items of the equipment could be placed, because many of the items could not be identified as belonging to one class or another, except on the theory that it was entitled to'the depredation fixed for that class. The testimony is unsatisfactory. Forward said, “I include in power the boilers and engines.” The witness and respondent got into a controversy over what was power and what was machinery and tools. We have here no information upon which to determine that question. The Board gave every opportunity for a full hearing, and was liberal'in the admission of evidence. We find no basis for disturbing its finding on the classification for depreciation purposes.
The order is affirmed as to the 1919 taxes, and reversed as to the 1917 and 1918 taxes.
No. 4226. There is in this ease no issue on the Statute of Limitations. Otherwise, the issues are the same as in No. 4225, and are determined by our decision in that ease.
The order of the Board of Tax Appeals is affirmed.
In cases where, we have made deductions of expenditures on the properties made after Jan. 1,1913, we have deducted the whole of the 1913 expenditures, because expenditures, if any, for the months of January and February, 1913, do not separately appear.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
GLENN v. AMERICAN SURETY CO. et al.
No. 10302.
Circuit Court of Appeals, Sixth Circuit.
April 1, 1947.
MARTIN, Circuit Judge, dissenting.
Irving I. Axelrod, of Washington, D. C. (Sewall Key, Louis Monarch and Norman S. Altman, all of Washington, D. C., and David C. Walls and A. Roy Copeland, both of Louisville, Ky., on the brief), for appellant.
Robert L. Blackwell, of Louisville, Ky. (Wm. Marshall Bullitt and R, Lee Blackwell, both of Louisville, Ky., on the brief; Bullitt & Middleton, of Louisville, Ky., of counsel), for appellees.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
SIMONS, Circuit Judge.
The only substantive question that appears to be left of the controversy in the present posture of the appeal, is whether sureties for the faithful performance by a contractor after satisfying the debts of their principal, are entitled to interest upon the amounts expended, recoverable out of retained percentages as against the claim of the government for taxes asserted against the same funds. The right of the sureties to recover their expenditures in principal amount, though unsuccessfully contested below, is not here challenged. Before reaching that question, however, it becomes necessary to solve a procedural problem raised by the appellees’ motion to dismiss the appeal, and a motion of the appellant to correct the caption of the record.
The controversy arose out of the following circumstances. On October 3, 1941, one W. J. Paul entered into a contract with the Louisville Municipal Housing Commission to perform certain public housing construction work. Paul, as principal, and the appellees as sureties, delivered to the Housing Commission a faithful performance bond in the penal sum of $540,-214, guaranteeing the faithful performance of the construction work and the payment of all obligations incurred in connection with it. Paul completed the contract but defaulted in the payment of labor and material claims in amounts totaling $52,571.57. Pursuant to the terms of the contract the Housing Commission withheld from Paul $59,647.72. On August 12, 1943, Glenn, Collector of Internal Revenue for Kentucky, served a notice of levy and a warrant for distraint upon the Housing Commission for delinquent internal revenue taxes owed by Paul, in the amount of $13,029.28. The Kentucky Unemployment Compensation Commission also filed a lien against the fund, but since it has not appealed its claim of lien disappears from the case. Upon being notified that the Housing Commission proposed to pay the federal tax out of the retained percentages, the sureties brought suit to restrain the Commission from paying any money to the Collector until their claims were satisfied, and for a declaration of right that their claims were prior liens against the retained fund. A temporary restraining order was followed by a temporary injunction and the sureties paid the claims against Paul in amounts totaling $52,571.57. The Collector was made a party defendant to the suit, the United States intervened and, upon motion for summary judgment, the sureties were adjudged to have an equitable lien upon the fund which had, in the meanwhile, been deposited in the registry of the court, in an amount covering their payment of the debts of Paul with interest from the date of payment, and the clerk of the court was directed to make payment to them out of the fund on deposit in the registry. The facts are not in dispute and are sufficiently recited in the memorandum of the district judge. American Surety Co. et al. v. City of Louisville Municipal Housing Commission et al., D.C., 63 F.Supp. 486.
On March 8, 1946, and within the jurisdictional period, the Collector filed a notice of appeal. After several extensions a record was filed and the appeal docketed in the name of the United States on July 17, 1946. Subsequently, a motion was filed to correct the notice of appeal by substituting the United States, intervenor, for the Collector, and on July 29 an order was entered correcting the notice of'appeal pursuant to the motion. Thereafter, by stipulation, the order of July 29 was vacated, and on October 16 an order was entered denying the motion of July 17, but without prejudice to a consideration of the rights of the United States as they may appear at the hearing of the case upon its merits. In January, 1947, the sureties moved to docket and dismiss the appeal of Glenn because he had failed to file a record and to docket his appeal on or before the return date, as enlarged, and to dismiss the appeal of the United States because it had failed to file a notice of appeal within the required time. The United States thereupon moved that the caption of the record and docket entry be corrected by a nunc pro tunc decree substituting the Collector for the United States as the appellant.
We have, then, this situation. The Collector filed the notice of appeal but did not file a record. The United States filed a record but had failed to notice an appeal within the statutory period. The United States now seeks to correct the docket by substituting Glenn as the appellant, which the sureties oppose. The sureties seek a dismissal of the appeal because of the variance between the party filing the notice and the party perfecting the record. Rule 73(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, requires a docketing of the appeal within 40 days from the date of notice, and Rule 73(a) provides that the failure of the appellant to take any further steps following his notice of appeal will not affect its validity; but is ground for such remedies as may seem appropriate to the appellate court, including dismissal of the appeal. That remedy the sureties would now have us apply. Our jurisdiction attaches at the time of filing the notice of appeal, and whether a dilatory appellant should be allowed to proceed is within our discretion. Ispass v. Pyramid Motor Freight Corp., 2 Cir., 152 Fed.2d 619. This discretion could be exercised if we grant the motion of the United States to correct the caption of the record, which would make it Glenn’s record filed out of time, and this we think ought to be done for it is apparent that the caption of the record was a clerical error made by the United States Attorney who represented both the Collector and the United States as intervenor. The courts, in general, have liberally construed the rule. Mosier v. Federal Reserve Bank, 2 Cir., 132 F.2d 710; Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F.2d 83; National Surety Corp. v. Williams, 8 Cir., 110 F.2d 873.
A more fundamental and less technical ground for permitting the extension and correction, however, appears. The Collector, in asserting the rights of the United States to the reserved fund for the payment of Paul’s' taxes, was acting not in his individual capacity but as the agent of the United States. Second Nat’l Bank of Saginaw v. Woodworth, D.C.S.D.Mich., 54 F.2d 672, affirmed 6 Cir., 66 F.2d 170. While he was the formal party defendant, the real party in interest was the United States, which, by its intervention in the suit, likewise became a formal party thereto. The interests of the Collector and the United States were, however, identical. The tax, if collected, would be remitted to the Treasury of the United States. The appeal could have been prosecuted either by Glenn or the government. While it has been held, Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, that a suit against the Collector for the recovery of an illegally held tax is not a suit against the United States, in respect to the application of the doctrine of res judicata, yet it has also been held that a judgment for or against the United States is binding upon the Collector who is the agent or trustee for the government. Second Nat’l Bank of Saginaw v. Woodworth, supra. However, it has been with great clarity pointed out that a suit against a Collector is today “an anomalous relic of bygone modes of thought” when he is engaged merely in the fulfillment of a ministerial duty. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 382, 53 S.Ct. 620, 623, 77 L.Ed. 1265. There Mr. Justice Cardozo observed, “There may have been utility in such procedural devices in days when the government was not suable as freely as now (citing cases). They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, * * * In such circumstances his presence as a defendant is merely a remedial expedient for bringing the government into court.” Whether the present appeal could be by us entertained, in the name of the United States, in view of this identity of interest between the government and the Collector, we need not now decide, but viewing the present situation realistically, we are not persuaded that the appeal should fail because the United States Attorney, through neglect, excusable or otherwise, failed to caption the record in the name of the Collector who had filed the notice of appeal. We held in Toledo Edison Co. v. McMaken, 6 Cir., 103 F.2d 72, certiorari denied, Toledo Railways & Light Co. v. McMaken, 308 U.S. 569, 60 S.Ct. 82, 84 L.Ed. 477, that while a Collector could expressly or by indirection waive the statute of limitations in a suit against him, he could not impart to such waiver the obligation which the statute, Title 28 U.S.C.A. § 842, imposes upon the government under certain circumstances to pay a judgment rendered against him- individually. Similarly, we think, a neglect by the Collector to caption a record on appeal to conform to the notice of appeal, may not deprive the government of its hearing on appeal where the government is not only the real party in interest but is likewise a formal party, and now, by its motion, seeks to have the record conform to the notice. See Porter v. Maule, 5 Cir., 160 F.2d 1. Wherefore, we conclude that the motion to dismiss the appeal must be denied and the motion to correct the caption of the record granted.
The contention of the sureties that if the Collector’s name is substituted for that of the United States upon the record and docket entry, he cannot bring this appeal because of the provisions of Title 28 U.S.C.A. § 732, which requires that all suits for recovery of taxes must be brought in the name of the United States, is, of course, without merit. The present suit was not brought by the Collector. He was made a party defendant at the suit of the sureties, and it would be novel doctrine, indeed, to hold a Collector, subjected to an adverse judgment, to be deprived, by reason of this statute, of the right to appeal. It was said in Moore Ice Cream Co. v. Rose, supra, “One who is brought before the court as sl formal party only will not be heard to object that there has been a denial of due process in enlarging the liability to be borne by someone else.” Similarly, it may be said that those who bring before the court one who is only a formal party will not be heard to challenge the right of such party to defend the suit or to review an adverse judgment.
Coming to the substantive issue of law, the appellant is in the anomalous position of declining to assail the judgment for the amount paid by the sureties, yet contesting the award of interest thereon on the ground that it violates § 3653 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev. Code, § 3653, which, with certain exceptions, forbids a suit to restrain the assessment or collection of a tax in any court. The short answer to the contention, if it is still in the case, is that given by the district judge in his preliminary memorandum of December 31, 1943, “The statute, however, applies to actions by taxpayers; it does not apply to a third party seeking to enjoin the Collector from taking his property to pay taxes of another. Tomlinson v. Smith, 7 Cir., 128 F.2d 808; Rothensies v. Ullman, 3 Cir., 110 F.2d 590; Long v. Rasmussen, Collector, D.C., 281 F. 236. See Hubbard Investment Company v. Brast, Collector, 4 Cir., 59 F.2d 709, 710.” Neither the validity nor the timeliness of the tax nor the correctness of the amount sought, is here assailed, and the plaintiffs in the suit are under no obligation to pay the tax.
There is left the contention that a surety is generally not entitled to interest upon its claim, and that the tax lien is superior to the interest charge because the latter is an unsecured claim against Paul which arose after the effective date of the tax lien. As to the first, the prevailing rule is that a surety has a right to be made whole when it fulfills its obligations under a contract of suretyship, and this includes interest upon the money expended by it in fulfilling its obligations until repaid. American Law Institute, Restatement of Security, § 104; Memphis & Little Rock R. R. Co. v. Dow, 120 U.S. 287, 7 S.Ct. 482, 30 L.Ed. 595; American Surety Co. v. Carbon Timber Co., 8 Cir., 263 F. 295. The rule that interest is not allowable on claims against a bankrupt or insolvent estate, as illustrated in Thomas v. Western Car Co., 149 U.S. 95, 13 S.Ct. 824, 37 L.Ed. 663, is not applicable here and rests upon a different principle. Where there is not enough money to pay all lienholders of the same rank entitled to share in the estate of a bankrupt or an insolvent, the disallowance of interest on all claims is but in pursuance of the rule of equitable treatment to all claimants. Nor is the rule which denies to a surety a profit on a building contract which it completes in default of its principal, available to the appellant. While interest may, in certain aspects, he considered as a profit to the lender or investor, it is not profit within the doctrine of authorities exemplified by United States Fidelity and Guaranty Co. v. Worthington & Co., 5 Cir., 6 F.2d 502, certiorari denied 269 U.S. 583, 46 S.Ct. 119, 70 L.Ed. 424; Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Nor is it within the purview of those cases which deny to the surety the right to retain funds which accrue to it by reason of a favorable compounding of the debts of its principal as illustrated in Laber v. Gall, 71 App.D.C. 345, 110 F.2d 697; Martin v. Ellerbe’s Adm’r, 70 Ala. 326; Coggeshall v. Ruggles, 62 Ill. 401. The principle applied in rendering the presently assailed judgment, is the right of the sureties to be made whole, and profit is not involved.
There remains the appellant’s final contention that the claim for interest is unsecured in that it arose after the levy of the tax lien. We agree with the district judge that a surety who makes good under his contract of suretyship upon default of the principal contractor, acquires an equitable lien against the unpaid balance in the hands of the person in whose favor the bond runs, and that such equitable lien upon payment by the surety relates back to the date of the contract and is superior to a claim of the United States for unpaid taxes for periods subsequent to the date of the contract of suretyship, although prior to the date of payment by the surety. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412. The cases relied upon by the appellant are not contra. People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754, involved 31 U.S.C.A. § 191, which provides that when a person indebted to the United States is insolvent and the estate insufficient to pay all debts of the deceased, those due the United States shall be first satisfied. No disposition of an insolvent’s estate is here involved, and the statute has no present application. United States v. City of Greenville, 4 Cir., 118 F.2d 963. Michigan v. United States, 317 U.S. 338, 63 S.Ct. 302, 303, 87 L.Ed. 312, is further afield. It rejected the contention that a Michigan statute declaring state taxes to be a first lien upon real property on specified dates, could create a priority against an earlier lien for federal taxes under the Supremacy Clause of the United States Constitution, Art. 1, § 8, “Hence it is not debatable that a tax lien imposed by a law of Congress, as we have held the present lien is imposed, cannot, without the consent of Congress, be displaced by later liens imposed by authority of any state law or judicial decision.” Conceiving the liens of the sureties to have been created by the contract and effective as of its date, the doctrine in the Michigan case has no present application.
The motion to dismiss the appeal is denied, the motion to correct the docket and caption of the record by substituting Seldon R. Glenn, Collector, for United States of America, is granted, and the judgment below is affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_dissent
|
1
|
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.
The OHIO CASUALTY INSURANCE CO., Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
No. 73-1435.
United States Court of Appeals, Sixth Circuit.
Submitted Dec. 7, 1974.
Decided Aug. 23, 1974.
Paul C. Weick, Circuit Judge, dissented and filed opinion.
Charles N. Myers, Jr., Hamilton, Kramer, Myers & Summers, Columbus, Ohio, on brief, for plaintiff-appellant.
Vorys, Sater, Seymour & Pease, Edgar A. Strause, Columbus, Ohio, on brief, for defendant-appellee.
Before WEICK, McCREE, and MILLER, Circuit Judges.
McCREE, Circuit Judge.
This appeal requires us to decide whether, under Ohio law, the six-year statute of limitations, governing actions upon contracts, express or implied, or the two-year statute of limitations, governing actions for bodily injury or injury to personal property, applies in an action for indemnification against an automobile manufacturer brought by an insurance company, subrogated to the rights of its insured, who was compelled to respond to third persons for personal injury and property damage allegedly caused by a defect in one of the manufacturer’s vehicles. The district court held that the two-year statute of limitations applied and dismissed the complaint on defendant’s motion. We determine that the six-year statute of limitations is applicable and reverse.
Under Ohio decisional law, which is applicable in this diversity case, “The period of limitation within which an action must be commenced is determined from the nature of the demand and the ground of the action as set out in the pleadings.” State ex rel. Lien v. House, 144 Ohio St. 238, 58 N. E.2d 675 (1944). See also Ohio Casualty Insurance Co. v. Capolino, 44 O.L. Abs. 564, 65 N.E.2d 287, 289 (1945).
The complaint alleged that the brakes on the insured’s truck failed ■ because of a defect, and that the truck went out of control and caused extensive personal injury and property damage to third persons; that Ford Motor Company, the manufacturer, was “primarily liable” for all damages; and that appellant is entitled to indemnification for payments it made in settlement of damage claims when Ford failed to act after having been given notice and an opportunity to defend.
All the settlement payments were made more than two years before the complaint was filed, but, with one exception, all were made within six years of the commencement of the action. Although the parties disagree about which statute of limitations applies, they agree that the applicable statute began to run when each payment was made. Appellant’s Brief at 6; Appellee’s Brief at 24. See 28 O.Jur.2d, Indemnity § 2. See generally 20 A.L.R. 2d 925. Of course, the insurance company, as subrogee, has no greater rights against Ford — no longer time in which to commence an action — than the insured would have had if he, instead of the insurance company, had paid the claims and sued appellee for indemnification. 50 O.Jur.2d, Subrogation § 26.
The “ground of the action pleaded,” see State ex rel. Lien v. House, supra, is “[if] one secondarily liable for a wrongful injury is compelled to respond in damages to the injured person, he may recoup his loss, upon an implied contract of indemnity, from the one who actually created the danger or perpetrated the wrong.” 28 O.Jur.2d Indemnity § 12 (emphasis added). This rule applies not only when a formal judgment is rendered, Maryland Casualty Co. v. Frederick, 142 Ohio St. 605, 53 N.E.2d 795 (1944), but also when the party vicariously or secondarily liable is compelled to settle a claim, after giving notice and an opportunity to defend to the party primarily liable. Globe Indemnity v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944). And an action for indemnification based upon primary and secondary liability may be brought in Ohio whether or not there exists in fact a contractual relationship between the parties. Burns v. Pennsylvania Rubber & Supply Co., 117 Ohio App. 12, 189 N. E.2d 645, 22 Ohio Op.2d 451 (1961). See also Aetna Casualty & Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568 (1952).
The cause of action for indemnification based on primary and secondary liability is considered to be an action arising under an “implied contract.” Maryland Casualty Co. v. Frederick, supra; 28 O.Jur.2d Indemnity § 12. And the Ohio courts have held that an action arising under an “implied contract” for indemnification is governed by the six-year statute of limitations. Poe v. Dixon, 60 Ohio St. 124, 54 N.E. 86 (1899); Ohio Casualty Insurance Co. v. Capolino, 44 O.L.Abs. 564, 65 N.E.2d 287 (1945); 28 O.Jur.2d Indemnity § 19, p. 326. We conclude that these authorities require reversal of the district court’s decision.
We are not persuaded by appellee’s argument that this action is governed by the two-year statute of limitations because the “real purpose” of the action is to recover for personal injury and property damage. See, e. g., Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951); Mahalsky v. The Salem Tool Company, 461 F.2d 581 (6th Cir. 1972); Tomle v. New York Central Railroad, 234 F.Supp. 101 (N. D.Ohio 1964). These cases were actions to gain compensation for personal injury or property damage. Here, the “real purpose” of the action is not to recover compensation for damage incurred in the automobile accident but, instead, to obtain indemnification for monies paid to the injured third persons who suffered the damage. This difference is dispositive. In Ohio Casualty Insurance Co. v. Capolino, supra, for example, the plaintiff insurer agreed to indemnify an employer for any loss caused by the negligence of his employees acting in the scope of their employment. Following a motor vehicle accident involving the negligence of employee Capolino, the insurance company paid a damage claim to an injured third person and then proceeded to bring an action against Capolino for indemnification on the theory that he was primarily liable. The court held the action was governed by the six-year statute of limitations for implied contracts and was not barred by the two-year limitations period governing actions for personal injury or property damage. See also Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). As in this case, the underlying basis for the implied contract of indemnification was the payment of a tort claim for personal injury and property damage arising from an automobile accident.
We reject appellee’s argument that the six-year statute of limitations governs an action for indemnification only when there is contractual privity between the parties. Although the court in Capolino mentioned the contractual relations between the negligent employee and the insured employer as one basis for the “implied contract” of indemnification, the court also relied upon the broader rule that “A person who, without fault, has become subject to tort liability for the unauthorized act and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.” Ohio Casualty Insurance Co. v. Capolino, supra 65 N.E.2d at 289 ,quoting Restatement of Restitution, p. 418. We have found nothing in Ohio law indicating that, for purposes of determining the applicable statute of limitations in indemnification actions based on primary and secondary liability, a distinction should be drawn between eases involving parties in privity of contract and those where the parties in fact have no contractual relationship. In either case, the reason for recognizing an “implied contract” of indemnification is not that an agreement to indemnify is implied in fact but, instead, that equitable principles of fairness require the party primarily liable to compensate a party only secondarily or vicariously liable who has been compelled to pay damages that the former should in equity bear. In either case, the existence or non-existence of privity of contract is immaterial in determining the applicable statute of limitations. Cf. Perry County v. Newark S. & R. Co., 43 Ohio St. 451, 2 N.E. 854 (1885); Hansen v. City of New York, 43 Misc.2d 1048, 252 N.Y.S.2d 695 (1964).
Accordingly, we hold that under Ohio law, the six-year statute of limitations applies to an action for indemnification arising where a party secondarily liable has been compelled to pay damages that should have been borne by a party primarily liable, even if the parties are not in fact in privity of contract.
Reversed and remanded for proceedings not inconsistent with this opinion.
. Ohio Revised Code § 2305.07.
. Ohio Revised Code § 2305.10.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. John Martin HUFFMAN, Defendant-Appellant.
No. 77-1741.
United States Court of Appeals, Tenth Circuit.
Submitted Aug. 8, 1978.
Decided March 29, 1979.
Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, on brief), for plaintiff-appellee.
John R. Bucher, Salt Lake City, Utah, for defendant-appellant.
Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.
HOLLOWAY, Circuit Judge.
Defendant-appellant Huffman has brought this timely direct appeal of his conviction under 18 U.S.C. § 659 for theft from an interstate shipment. His primary contentions on appeal are (1) that his prosecution violated the Fifth Amendment guarantee against double jeopardy, (2) that the Government should have been collaterally estopped from introducing evidence on certain issues at his trial, and (3) that his Sixth Amendment right to a speedy trial has been violated.
Viewing the record in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following facts:
Defendant entered into a lease agreement with Hams Express, Incorporated on May 21, 1975, for the transportation of canned hams and ham hocks from Chicago, Illinois, to the United States Navy at Alameda and Los Angeles, California. The agreement encompassed the lease of a tractor-trailer for hauling the goods and the services of the defendant to drive the shipment to California. When defendant failed to make daily telephone reports, Hams Express, Incorporated contacted the Federal Bureau of Investigation on May 28, 1975, and reported the truck and shipment as missing.
On May 30, F.B.I. agents in Salt Lake City located defendant and interviewed him. He told the agents he had been on a “bender,” that he had gone to a bar at a Travelodge and tried to sell some of the hams, and that he got angry and told two men to “just take the whole truck.” (I R. 46). There was other proof the hams were sold for $5,500, that defendant got $4,000 in cash, and another man got $1,500. (Id. at 55 — 56). Since defendant had no authority to sell the cargo of hams, on June 2, 1975, the United States Magistrate issued a complaint against him. On July 11, defendant waived indictment and was arraigned on an information charging him with the theft of Government property in violation of 18 U.S.C. §§ 641 and 2.
After the case was set for trial, the Government discovered in the course of interviews with its witnesses that title to the hams had not yet vested in the United States when defendant sold the hams. On October 28, 1975, the Government filed a supplemental complaint against defendant alleging violation of 18 U.S.C. § 659, theft from an interstate shipment, and a motion to dismiss the charge under § 641. When the § 641 charge was called for trial on November 12, the Government renewed its motion to dismiss. The court ordered a jury impanelled and sworn. After counsel for the Government stated that elements of the offense originally charged could not be proved, the court granted a judgment of acquittal.
On January 16, 1976, when present for arraignment on the second charge, the defendant refused to waive indictment by a grand jury. (Ill R. 2). A grand jury indicted defendant on July 26, 1976, for violation of 18 U.S.C. §§ 659 and 2, theft of an interstate shipment and aiding and abetting. Defendant filed a “Motion for Order of Acquittal” on December 15, 1976, directed to the new charge under 18 U.S.C. §§ 659 and 2, claiming that the Government was collaterally estopped from proving elements of the new charge and that the defendant was twice put in jeopardy. The trial occurred on July 7, 1977, on the second charge, and the jury returned a guilty verdict that day. After several continuances, the judgment of conviction and sentence was filed on March 15, 1978. (I Supp. R. 1). Defendant appeals, and we turn now to his three major appellate contentions.
I
First, defendant argues that his conviction on the second charge under 18 U.S.C. §§ 659 and 2, theft from an interstate shipment, must be set aside on double jeopardy grounds.
Defendant recognizes the rulings that where one act is a transgression under two statutes, and where different evidence must be used to convict under the statutes, there may be prosecution under both, citing Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. He says however that there is a test of more recent origin since Ashe v. Swensen, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469, and he refers to views in the separate opinions of Justice Brennan in Abbate v. United States, 359 U.S. 187, 198, 79 S.Ct. 666, 3 L.Ed.2d 729, and Ashe, supra, at 448, 90 S.Ct. 1189. He urges adoption of the same transaction test and says that cases applying the same evidence test are distinguishable. He argues that cases applying the same evidence test were ones where the statutes were aimed at substantially different evils, e. g., United States v. DeMarrias, 441 F.2d 1304 (8th Cir.) (earlier plea of guilty to driving while intoxicated, etc., and later prosecution for manslaughter), whereas in our case both statutes deal with theft.
The Government replies with two basic contentions. In the first place it is argued that this case is closely parallel to United States v. Appawoo, 553 F.2d 1242 (10th Cir.), where we held that the Government was entitled to appeal a “judgment of acquittal” under the circumstances and that the trial court erred in entering a “judgment of acquittal” for defendant when the court had failed properly to hear a motion to dismiss on constitutional grounds before trial, had impanelled a jury and then taken some evidence, and had then entered the “judgment of acquittal” which was actually based on a holding that the application of the statute was unconstitutional. However, in Appawoo the Government appealed the “judgment of acquittal” and obtained a reversal to lay a predicate for retrial, along with an appellate ruling that the constitutional holding of the trial judge had been in error. Here, there was no appeal by the Government from the “judgment of acquittal.” The judgment was not reversed as was the case in Appawoo. The first contention of the Government is thus untenable and we must reckon with the effect of the “judgment of acquittal” on the subsequent prosecution under the theft of interstate shipment charge.
The second response of the Government to defendant’s double jeopardy defense is that the two offenses are separate and distinct and not identical in fact and law, that the same evidence could not prove both offenses, and that therefore the Double Jeopardy Clause does not apply at all.
We do agree with this contention. It is true that the same theft of property was charged in both indictments. However, a conviction under 18 U.S.C. § 641 for theft of Government property requires proof that the property taken belonged to the Government. On the other hand, a conviction under 18 U.S.C. § 659 for theft of an interstate shipment requires proof of movement of the property in interstate commerce. Thus each statute requires proof of an ultimate fact in addition to the theft, which the other does not, and double jeopardy principles are not infringed. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 40, 76 L.Ed. 520; Gavieres v. United States, supra, 220 U.S. at 342, 31 S.Ct. 421; Cox v. Gaffney, 459 F.2d 50 (10th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110; Bell v. Kansas, 452 F.2d 783, 792 (10th Cir.).
There remains the contention of defendant that we should adopt the same transaction test and the views on double jeopardy expressed by some Justices of the Supreme Court. See Abbate v. United States, supra, 359 U.S. at 196-201, 79 S.Ct. 666 (Brennan, J., concurring); Ashe v. Swenson, supra, 397 U.S. at 448-460, 90 S.Ct. 1189 (Brennan, J., concurring). The instant case does present directly problems such as have been addressed in these concurring opinions. However, the test of a single transaction or the same criminal episode has not been adopted by the Supreme Court and we have declined to apply it. See United States v. Addington, 471 F.2d 560, 568 (10th Cir.); Birch v. United States, 451 F.2d 165, 167 (10th Cir.).
In sum, since we agree that the charge of theft of Government property under § 641 is separate and distinct from that of theft of an interstate shipment under § 659, we conclude that the judgment for defendant on the former charge does not bar prosecution on the latter.
II
Defendant’s second major argument is that in multiple prosecutions the Government should be collaterally estopped in a later trial from introducing evidence on issues decided against it in a first trial. Defendant says that here the Government at the first trial failed to present evidence on any issue and therefore a judgment of acquittal was granted. More specifically, he argues that the issues of intent, identity, taking and the like were necessarily found for the defendant at the first trial and hence the Government was collaterally es-topped from introducing evidence on those elements of the charge of theft from the interstate shipment at the second trial. (Brief for Appellant, 7).
It is clear that principles of collateral estoppel are available in proper circumstances in criminal trials. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; Sealfon v. United States, 322 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. The rule is not applied with a hypertechnical and archaic approach, but with realism and rationality. This approach requires examination of the record in the prior proceeding, including the pleadings, evidence, charge and other relevant matters. Ashe, supra, 397 U.S. at 444, 90 S.Ct. 1189. The inquiry must be set in a practical frame with an eye to all the circumstances of the proceedings. Sealfon, supra, 322 U.S. at 579, 68 S.Ct. 237.
Following this approach, we must focus particularly on the proceeding when the trial court granted the “judgment of acquittal” on the first charge, theft of Government property. On that occasion on November 12, 1975, the case was called on a calendar where it had apparently been set for trial. (II Supp. R. 1, 4). An array of jurors was available.
When the case was called Government counsel advised the court of his pending motion to dismiss which had been filed October 28. The Assistant United States Attorney told the court that a supplemental complaint for theft of an interstate shipment had been filed, that the Government had been misinformed as to ownership of the property, and that the Government could not prove the charge originally made for theft of Government property. (Id. at 1-5). The defendant objected to dismissal. His counsel said that the Government had had five months to determine if the property was that of the Government. At this point the court had a jury impanelled and sworn.
The Government attorney then said further that the Government did not “have witnesses to prove the essential elements of the crime. They are non-existent.” (II Supp. R. 3). The attorney explained that the F.B.I. had advised that the hams were Government property, that when the case was set for trial witnesses were re-interviewed, that it was discovered for the first time that there was an ownership question, that ownership had not passed to the Government, and that a supplemental charge had been filed.
The defendant objected again to dismissal. His attorney said the Government had been advised of these facts earlier, that the defendant was ready for trial, that he was from California and had had great expense and inconvenience, and that he was unable to work. (Id. at 5).
The trial judge then stated that he agreed with defendant’s position, that it sounded as though there was a belated attempt by the Government to get a postponement, and that defendant “has been in jeopardy.” The jury was excused and the court then directed preparation of an order, stating:
All right. Dismissed. That is, not dismissed. Judgment of acquittal. Motion for judgment of acquittal is granted.
There were thus two apparent grounds for the trial court’s action — failure of the Government to offer any evidence and the Government’s announcement that it could not prove the elements of the charge of theft of Government property under 18 U.S.C. § 641. More specifically, it is clear that what the Government confessed was that it could not prove Government ownership of the property in question.
From these circumstances we cannot agree that the Government is collaterally estopped from proving the elements of the second charge of theft of an interstate shipment under 18 U.S.C. § 659. If the judgment is viewed as a sanction imposed for failure to prosecute the charge of theft of Government property, no particular issues were decided which are pertinent to the subsequent charge of theft from an interstate shipment. And if the whole record and the judgment adverse to the Government are considered, as Ashe requires, the only ultimate fact determined clearly seems to be lack of proof of Government ownership of the property, which defect the Government confessed in court. From this record that is the only ultimate issue of fact determined by the prior judgment for collateral estoppel purposes. Ashe, supra, 397 U.S. at 443, 445, 90 S.Ct. 1189.
Thus we conclude that the Government was not collaterally estopped to prove the elements of the second offense charged, theft of an interstate shipment.
Ill
Finally, defendant strenuously argues that his Sixth Amendment right to a speedy trial has been violated so that the case should be dismissed as required by Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. He maintains that this conclusion is clear when the four factors for judging the speedy trial claim identified in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, are considered.
First, we turn to the factor of the length of the delay. The theft allegedly occurred on May 27, 1975. Defendant was arrested and taken into custody on May 30, 1975. (Brief of Appellant, 8). It may be that we should view protection of the speedy trial provision as applying from that date of initial restraint. See United States v. Marion, 404 U.S. 307, 313, 320-21, 92 S.Ct. 455, 30 L.Ed.2d 468. And, of course, the actual trial on the second charge did not occur until July 7, 1977. From this standpoint the delay, of course, is very considerable and disturbing.
The case, however, has unusual circumstances which we have outlined earlier. The Government found it was misinformed by the F.B.I. and moved to dismiss the first charge and also filed the second charge of theft from an interstate shipment on October 28, 1975. The case was called for trial on November 12 on the original charge of theft of Government property, the Government brought its motion to dismiss to the court’s attention, but the court instead granted a judgment of acquittal on the first charge that day.
The defendant claims that he vigorously objected at that time to any dismissal on the ground that resulting delays would seriously prejudice his interests and defense and argues that this was a strenuous assertion of his right to a speedy trial. We note that it was on this occasion that the trial judge said he agreed with defendant, and that it sounded as though this was a belated attempt to get a postponement. (II Supp. R. 6). In any event, the court then entered the “judgment of acquittal.”
The new complaint under § 659 remained on file, however. On January 16, 1976, defendant refused to waive indictment by a grand jury and he was indicted for theft of an interstate shipment on July 26, 1976. Defendant’s counsel filed his “Motion for Order of Acquittal” on December 15, 1976, directed to that charge, relying on collateral estoppel and double jeopardy grounds. As noted, trial actually commenced on July 7, 1977.
Thus, there was considerable delay until trial, and this was sufficient to be presumptively prejudicial, causing inquiry into the other factors.
Second, we consider the reasons for the delay. The charges made fall far short of being a “serious, complex conspiracy charge,” Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182, so as to justify some delay. Moreover the delay caused by the need to dismiss and file the new charge resulted from a Government error. We see nothing in the record suggesting any intentional harassment or oppression on the part of the Government; nevertheless, the error is not a plus for the Government and the delay it caused is a factor of some weight against the Government.
The Government says that the defendant contributed to the delay by his refusal to waive indictment by a grand jury. We do not agree. Defendant’s reliance on his Fifth Amendment right to indictment by a grand jury should not be charged against him. This is a neutral factor we feel.
For the most part the delay is not explained. Perhaps crowded dockets and responsibilities of the court and prosecutors contributed to the delay. However, even such unintentional delay must be considered since the ultimate responsibility for such circumstances rests with the Government and not the defendant. Strunk v. United States, supra, 412 U.S. at 436, 93 S.Ct. 2260.
Third, we come to the defendant’s assertion of his right to a speedy trial. As noted, he claims he asserted the right when he objected to dismissal of the first charge on November 12, 1975. This objection was made when the case was called for trial, the Government sought to dismiss, and the judgment of acquittal was granted. The defendant did then object on grounds relevant to his right to a speedy trial, asserting his readiness for trial, hardship to him and expense since he was from out of state, the difficulty of finding work and the like. The trial judge said that he agreed with defendant that the Government’s action looked like a belated effort to obtain a continuance. While we see no real basis for this conclusion by the court, we do agree that defendant’s objections did have the clear effect of demanding a speedy trial — at that time.
However, after the judgment of acquittal was granted that day, the story changed. The defendant did not thereafter reassert his right to a speedy trial by motion or otherwise until he orally moved for dismissal on July 5, 1977, two days before actual trial. (I R. 3-4). Failure to assert the right makes it difficult for a defendant to prove that he was denied a speedy trial. Barker, supra, 407 U.S. at 532, 92 S.Ct. 2182. In view of defendant’s long silence until his oral motion, we feel that his position is seriously weakened in claiming a Sixth Amendment infringement.
Fourth, we must weigh possible prejudice to the defendant. There is no claim of prejudice from pretrial incarceration. Anxiety and concern of defendant regarding the charges must be presumed, and they were endured for some time. In this connection we note that defendant’s counsel referred to his great expense and great inconvenience and inability to work when he objected on November 12, 1975, to dismissal of the first charge and filing of a new charge. (II Supp. R. 5).
The most significant element of possible prejudice is impairment of the defense. Barker, supra, at 532, 92 S.Ct. 2182. In this regard defendant’s claim is that by the time of trial three witnesses had “become unavailable, leading to impairment of the defense.” (Brief of Appellant, 10). Defendant’s attorney stated the day the trial began that they would support the defendant’s motion to suppress his statements made to the F.B.I. on the basis that he was intoxicated when he spoke to the agents.
It is true that defendant’s statements to the F.B.I. were damaging evidence against him. However, the three witnesses were not identified, and there was merely a conclusory statement that they had “become unavailable . . . ” In the circumstances we feel that the basis for the claim in this respect is not overly persuasive. See United States v. Gibson, 513 F.2d 978, 981 (6th Cir.).
While there is some force to the Sixth Amendment claim, particularly because of the length of delay, weighing all of the Barker factors, we conclude that the defendant’s constitutional right to a speedy trial was not infringed.
In sum, we find no reversible error and the judgment is accordingly
AFFIRMED.
. Conviction under 18 U.S.C. § 659 carries a maximum penalty of ten years of imprisonment or a fine of up to five thousand dollars ($5,000), or both. Appellant was sentenced to a term of imprisonment of five years, which sentence was suspended. He has been placed on probation for five years subject to the condition that he participate in an alcohol treatment program to be designated by his probation officer.
. On July 5, 1977, the case was called, some motions were presented and disposed of, and a jury was impanelled. The defendant requested that the case go to the end of the calendar for trial preparation. After the jury was impanelled the trial judge granted a two-day continuance and the case was tried on July 7, 1977.
. The delay until trial on July 7, 1977, might be viewed as running from the first arrest on May 30, 1975, or from the filing of the complaint on October 28, 1975, on the second charge. In United States v. Merrick, 464 F.2d 1087, 1090 (10th Cir.), cert, denied, 409 U.S. 1023, 93 S.Ct. 462, 34 L.Ed.2d 314, the entire period was considered where a reindictment was necessary, but this was on the same charge. Since the first charge here was disposed of by the judgment of acquittal, arguably we should only count the delay from filing of the second complaint in October, 1975. In either event the delay was considerable and sufficient to be of serious concern, triggering a full analysis under Barker.
. As noted earlier, on January 16, 1976, defendant refused to waive grand jury indictment and on July 26, 1976, the indictment under 18 U.S.C. §§ 659 and 2 was filed.
. The statement of defendant’s attorney made on July 7, 1977, just before the taking of evidence, was as follows (I R. 8-9):
MR. BUCHER: I have one other motion, Your Honor. It’s a motion to suppress any statements made by the defendant and I have lost three of my witnesses, Your Honor, because of the age of the case and because they evidently perhaps felt that the defendant was acquitted in the first instance. I have lost three of my witnesses to support that but I believe I can use the defendant to show he-was intoxicated at the time he spoke to the FBI.
THE COURT: Well, you are going to have to put on proof of that. The motion is denied at this time. Bring in the jury.
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_origin
|
H
|
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.
GAY GAMES, INC., v. SMITH.
No. 8068.
Circuit Court of Appeals, Seventh Circuit.
Jan. 28, 1943.
Rehearing Denied Feb. 20, 1943.
Walter E. Barton, of Washington, D. C. (George G. Rinier, of Indianapolis, Ind., of counsel), for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, John E. Garvey, and J. Louis Monarch, Sp. Assts. to the Atty. Gen., and B. Howard Caughran, United States Atty.,-of Indianapolis, Ind., for appellee.
Before EVANS, KERNER, and MIN-TON, Circuit Judges.
EVANS, Circuit Judge.
To recover a refund of manufacturer’s excise tax of $52,779.45, and interest, paid by plaintiff, from February 1, 1936, to July 31, 1938, to the defendant, this suit was brought. Trial was before a master, and later before the District Court, both of whom found for the defendant.
In the final analysis, the controversy narrows itself to a single issue, to-wit: Did plaintiff include the taxes it admittedly paid to the defendant, in the price of the article it sold to its customers? A better statement of the specific question upon which the foregoing issue turns, is this: Does the evidence support the finding of the District Court that plaintiff failed to establish the necessary fact that it did not include the taxes in its cost price to its customers ?
That plaintiff paid the taxes, assessed under Section 609 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 612, is admitted. TKe amount thus paid is not in dispute. The nonapplicability of the tax to plaintiff’s product is not here questioned. Plaintiff’s right to recover under Sec. 3443 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code § 3443 is, by the undisputed evidence, confined to one issue — sufficiency of plaintiff’s proof that it did not include the tax in the price of the article when it sold the same to its customers.
The credit and refund section pertinent to this controversy reads: “No overpayment of tax under this chapter shall be credited or refunded * * * unless the person who paid the tax establishes * * * that he has not included the tax in the price of the article with respect to which it was imposed, or collected the amount of tax from the vendee. * * * ”
Plaintiff argues that its proof affirmatively and conclusively shows that it did not include the taxes in its sales price when selling its product. It also contends that the master, who tried the issues and saw the witnesses, made specific findings which now make any other conclusion impossible. It finally contends that the court necessarily avoided or refused to follow these specific findings, or, in effect, rejected them in its more general findings and conclusions, which can not be reconciled with the master’s specific findings. This was contrary to Rule 53(e) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
In weighing this contention and examining the findings of both the master and the court, it is noticeable that the findings of the master are much more voluminous and detailed than those of the court. It was the practice of Master Ward to state in detail the evidence on which fact issues were based and then give his reasons for the findings he made. He also divided ultimate fact findings into evidentiary findings upon which his ultimate findings of fact depended. Such a practice is at times highly advantageous and helpful. The trial court, however, is not required to pursue the same order or go into the same detail in its findings. The Rules of Civil Procedure (Rule 52) do not require the court to do more than to cover the ultimate fact issues. This, Judge Baltzell did. His findings are complete, although they are only one-fourth the length of the document called findings of the master, but which include, as before stated, a statement and discussion of the evidence.
While plaintiff presented evidence of its sales before and after it ceased billing the tax as a separate item, and charts of its transactions from which it rather persuasively argues that it did not include the taxes in its sales price, this evidence does not conclusively tell the whole story. Defendant presents equally persuasive testimony showing plaintiff’s price lists of April, 1935, and November, 1935. It was between these two dates that plaintiff changed its policy from one of treating the tax as a separate item and one “for the convenience of our customers in computing prices on orders” which did not set forth the excise tax separately. These price lists on certain cards (plaintiff’s business was making and selling baseball tally cards, tip cards, and jackpot tip cards, etc.) are here stated, taking two illustrations.
April, 1935 — 1 card 50^ — 6 cards $2.75— 1 dozen cards $5.
On Nov. 20th, 1935, when the change in its practice in re excise tax went into effect, the same cards were listed:
1 card 55‡ — 6 cards $3.00 — 12 cards $5.-50.
“Football 29 tally cards” were quoted in the April 1, 1935 price list, to which 10% tax was to be added, as follows:
$1.25 per dozen — $6. per six dozen — $11 per gross.
On November 20, 1935, when the price list' relieving the purchaser from paying any tax, was quoted, the prices were raised as follows:
$1.35 per dozen — $6.60 per six dozen— $12 per gross. .
This evidence strongly supports the court’s finding. It makes impossible a holding by us that the proof conclusively established that plaintiff did not include the tax in the price at which the article was sold.
Left only for consideration is plaintiff’s contention that the master’s specific fact findings support its position, and the court was required to accept them. Our construction of the findings leaves no dispute or conflict between them. In other words, we reject plaintiff’s construction, and the effect, of the master’s specific findings referred to by plaintiff.
The judgment is affirmed.
The master’s general findings and conclusions were against the plaintiff, but appellant argues that these findings were inconsistent with the master’s more specific findings on evidentiary but determinative issues.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_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.
George E. PESSOTTI, Plaintiff, Appellant, v. EAGLE MANUFACTURING COMPANY, Defendant, Appellee. George E. PESSOTTI, Plaintiff, Appellee, v. EAGLE MANUFACTURING COMPANY, Defendant, Appellant.
Nos. 90-2182, 90-2183.
United States Court of Appeals, First Circuit.
Heard Sept. 3, 1991.
Decided Oct. 18, 1991.
Michael Avery, Boston, Mass., for plaintiff, appellant George E. Pessotti.
John J. McGivney with whom Thomas D. Burns and Burns & Levinson, Boston, Mass., were on brief for defendant, appel-lee Eagle Mfg. Co.
Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
LEVIN H. CAMPBELL, Circuit Judge.
Under the doctrine of relation back, an amended complaint can be treated, for purposes of the statute of limitations, as having been filed on the date of the original complaint. This diversity case presents several questions concerning choice of federal or state relation back law, the result dictated by that law, and the procedural mechanisms by which relation back questions may be raised and ruled upon.
I
On May 12, 1979, appellant George Pes-sotti suffered severe burns when gasoline fumes were ignited by the pilot light on his kitchen stove. Pessotti had been using gasoline as a solvent in order to remove his kitchen carpet, which was glued to the linoleum floor. On July 29, 1980, Pessotti filed a complaint in the District Court for the District of Massachusetts against Magic Chef, Inc., the manufacturer of the stove. Asserting that jurisdiction existed because of diversity of citizenship, Pessotti alleged that his injuries had been caused by Magic Chef's failure to warn him of the hazards of the stove’s continuously burning pilot light.
At a trial, which took place ten years later in the summer of 1990, Pessotti testified to having believed at the time he filed his complaint against Magic Chef that the manufacturer of the gasoline can was also responsible for his injuries. However, he said he had been unable to identify the manufacturer of the can until four years after filing suit, when, in late 1984, his expert discovered a roll of undeveloped photographic negatives in the files of the Westford, Massachusetts police department. This was apparently the first time anyone working on behalf of Pessotti had checked the police files, even though two police officers had investigated at the scene on the day of the accident. After developing the photographs, Pessotti determined that the can in which he had brought the gasoline into his kitchen had been manufactured by appellee Eagle Manufacturing Company. On January 11, 1985, Pessotti moved to amend his complaint to add Eagle as a defendant. The motion was allowed, and Pessotti filed an amended complaint on February 12,1985 and a corrected amended complaint on November 26, 1986. The amended complaints alleged that Eagle’s failure to warn him of the hazards of using gasoline near hidden ignition sources constituted negligence, breach of warranty and unfair or deceptive trade practices, in violation of Massachusetts common and statutory law.
The statute of limitations had expired in 1982 as to the negligence and warranty claims against Eagle, and in 1983 as to the unfair trade practice claim. When Pessotti moved successfully to amend his complaint so as to add Eagle as a defendant, and when the amended complaints were filed, the crucial question of whether or not the claims against Eagle would relate back to the date of the original complaint was left undecided. Nor did the court then consider whether Massachusetts or federal law should control that determination. The plaintiff raised these issues in a memorandum of law submitted in support of the amendment, but, as Eagle was not then a party, the amendment was allowed unopposed. Much later, during the trial proceedings in 1990, the district court commented that, pursuant to its normal practice under the Federal Rules of Civil Procedure, it had allowed the complaint to be amended subject to a later determination of whether it would relate back.
In its answer to Pessotti’s corrected amended complaint, Eagle pleaded that Pessotti’s claim was “barred by the applicable statutes of limitation and/or the doctrine of laches.” Eagle did not, however, move for judgment on this ground until after the trial commenced. During the interim, in January 1988, Pessotti settled with Magic Chef for $15,000, leaving Eagle as the sole defendant. A jury trial on Pessotti’s claims against Eagle was held in late July and early August 1990. At the close of plaintiff’s case, Eagle moved for a directed verdict on the grounds of limitations and laches, as well as of the insufficiency of the evidence and other grounds related to the merits of the action. A hearing was held at which the only limitations issue discussed was whether the amended complaint related back under either Massachusetts or federal law. The motion was denied, and the jury returned a verdict for the plaintiff. Judgment on the verdict was entered on August 9,1990. On the day following, Eagle filed a motion for judgment notwithstanding the verdict asserting grounds the same as those in its earlier motion for a directed verdict.
Regarding the alleged insufficiency of the evidence and other questions pertaining to the jury verdict, Eagle’s motion was denied. 774 F.Supp. 669. The district court ruled that Eagle’s motion had raised “close and debatable issues,” but that “the evidence [was] barely sufficient to present a jury question.” On the relation back issue, however, the court held for Eagle. It ruled that relation back was governed by Rule 15(c) of the Federal Rules of Civil Procedure, which clearly indicates that the amended complaint did not relate back to the date of filing of the original complaint. In the alternative, the court held that the same result would obtain under Massachusetts law. The district court also rejected Pessotti’s arguments that it was precluded from ruling on the relation back question because the matter had been presented for the first time in a motion for judgment notwithstanding the verdict several years after the court had allowed the complaint to be amended so as to bring in Eagle.
Pessotti presents several arguments on appeal. He challenges the timing and procedure of the court’s relation back ruling, arguing that the district court could not consider that question when it did because (i) if Massachusetts law controls, relation back was automatic once the amendment was allowed, (ii) judgment notwithstanding the verdict may only be granted on the merits of an action, not on a limitations defense, and (iii) Eagle was barred by waiver and estoppel from raising its limitations defense several years into the litigation. On the relation back question itself, Pessot-ti argues that Massachusetts law governs and causes his claim against Eagle to relate back to the time he sued Magic Chef. Eagle cross appeals, arguing that the district court erred in denying its motion on insufficiency of evidence and other merits grounds.
We uphold the district court’s determination that Pessotti’s claim against Eagle did not relate back and was, therefore, barred by the statute of limitations. In our view, the fact the court at first allowed the complaint to be amended so as to join Eagle as a defendant — ruling against plaintiff on relation back and limitations grounds only much later, when granting defendant’s motion for judgment notwithstanding the verdict — was not procedurally fatal. We also think that the court’s substantive disposition of the relation back question was correct under both Massachusetts and federal law. We need not, therefore, consider the choice of law question nor do we reach the legal sufficiency of plaintiff’s case.
II
A. Procedure and Timing Issues
We first consider Pessotti’s arguments concerning the timing and mechanics of the district court’s relation back decision.
Pessotti contends that Eagle forfeited its statute of limitations defense (including any right to object to the relation back of Pessotti’s claim) by failing promptly to contest the court’s order allowing the complaint to be amended. Pessotti’s argument rests on the twin assumptions that Massachusetts law controls the relation back issue, and that the district court was bound by a particular aspect of the Massachusetts relation back rule, to wit, that an amended complaint automatically relates back to the filing date of the original complaint. Under Pessotti’s theory, Eagle could not simply rely on its answer to the amended complaint to raise and preserve its statute of limitations defense. Rather, Eagle had to timely move the court to reconsider its order amending the complaint to include the new claim against Eagle. As this was not done, Pessotti argues, the amendment stood, and, under Massachusetts requirements, it automatically related back. Subsequent arguments about whether or not it related back were simply meaningless, since under Massachusetts law, amendments once allowed, always relate back, as a matter of black-letter law.
Pessotti’s argument only works, of course, if Massachusetts relation back law applies. If federal relation back law applies, the mere fact a court allowed an amendment to the complaint would not determine whether the amended complaint related back. Under federal law it is clear that the question whether Pessotti’s claim against Eagle related back remained open for later adjudication as a separate and distinct matter.
But even if Massachusetts relation back law is controlling here, we do not agree with Pessotti’s position that the court’s allowance of the amendment was a procedural event that permanently resolved the question of relation back. The district court, in its subsequent consideration of the relation back issue, commented that it had allowed the amended complaint, pursuant to the Federal Rules of Civil Procedure,
subject to later determination of the consequences of my allowance of the amendment. Surely, whether a federal court allows an amendment with a view to later determining its effect (given then unsettled questions of law), rather than considering all of the potential consequences of a proposed amendment before deciding whether to allow the motion to amend, it is a matter of procedural law on which a United States district court may apply federal rather than Massachusetts law. Accordingly, I rule that under federal law it is appropriate for me now to declare explicitly that my procedural order was not meant to decide, and did not have the effect of deciding, the unsettled question as to whether the amendment would relate back to the time of filing of the original complaint. My present ruling has the same legal effect as vacating my order of January 1985 [allowing the amended complaint], and if it is necessary to characterize it in this way in order to achieve the intended effect consistently with Massachusetts law, I hereby do so.
We think the district court analyzed the question properly. Even assuming, ar-guendo, that choice of law principles were later found to require application of Massachusetts substantive rules concerning relation back, the district court’s procedural matrix rests on federal law — and federal law treats amendment and relation back as raising separate issues. When and in what procedural setting a court rules on a particular question is normally a “procedural” issue controlled by a forum’s own law. Under “outcome determinative” principles, we doubt that a party would select a forum in these circumstances simply on the basis of whether a substantive relation back rule would be resolved at the time of amendment or later. See Hanna v. Plumer, 380 U.S. 460, 468-69, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). Indeed, the cart would be put before the horse if, in order merely to determine when and in what setting it would resolve a relation back issue, a court had, first, to decide one of the grounds underlying the latter issue, i.e., choice of law. Rather we think the court should consult its own law in order to ascertain procedural ground rules of this sort.
Hence, here, the district court properly treated relation back as a separate question, in conformity with the scheme of the federal rules. At the time it allowed the amended complaint, it had no practical way of knowing whether federal or Massachusetts (or some other) law would ultimately control, and it had no intention of resolving relation back merely by allowing the amendment. Eagle timely raised the statute of limitations bar in its answer, and both parties and the court thereafter accepted that Eagle had objected to the allowance of the amended complaint on relation back grounds. Although he made related arguments concerning waiver and estoppel, Pessotti never argued in the district court that no proper objection had been raised. At hearings held on both the directed verdict and judgment notwithstanding the verdict motions, the parties argued extensively about both federal and Massachusetts law concerning relation back. Fully aware of the procedural distinction between Massachusetts and federal relation back law, and of the guiding substantive rules in both jurisdictions, the court then ruled in favor of Eagle. It would make no sense to hold that this ruling, rendered after full argument by both sides, was a nullity because no objection fully satisfying Massachusetts procedures had been raised at the time the complaint was amended.
Pessotti next argues that it was error for the district court to, in effect, vacate its earlier order allowing the amended complaint by granting a judgment notwithstanding the verdict. Pessotti claims that a motion for judgment notwithstanding the verdict is an improper vehicle for presenting a limitations related defense because such a judgment may be granted only where the evidence does not support the verdict on the merits. To support this proposition, Pessotti points to authorities stating that a judgment notwithstanding the verdict should be granted where no reasonable construction of the evidence could support the verdict. E.g., Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.1987). However, we read these authorities as stating only the standard for deciding a sufficiency of the evidence claim when such claim is presented in a motion for judgment notwithstanding the verdict, not as limiting the issues which can be presented via such a motion. Federal Rule of Civil Procedure 50(b) does not on its face limit the legal questions which may be raised, and we see no reason why a limitations defense may not be presented in a motion for judgment notwithstanding the verdict. See Borden v. Paul Revere Life Insurance Co., 935 F.2d 370, 376 (1st Cir.1991) (affirming a district court’s rejection of a limitations defense presented in a motion for directed verdict and ruled upon after judgment, without noting any procedural problem).
Pessotti also argues that Eagle should have moved for judgment sooner in the proceedings, rather than waiting several years to do so. To the extent that this argument is based on the doctrine of waiver, we reject it. Eagle’s assertion of a limitations defense in its answer made clear its intent to raise that defense. We need not decide whether it would be proper for a district court, in appropriate circumstances, to avoid wasted effort by requiring that a defense raised in a responsive pleading be argued and ruled upon before trial. Such a decision concerns the efficient management of the litigation and is properly left to the discretion of the district court. Here, the district court determined that it was appropriate to consider the defense at the end of trial proceedings. In the circumstances, we do not find any abuse of its discretion.
Finally, we also reject Pessotti’s related argument that, because of Eagle’s failure to move for judgment on limitations grounds early in the proceedings, Eagle was estopped to raise its limitations defense at the time it did. Pessotti claims that Eagle’s failure to assert its limitations defense earlier led him to believe that it would not do so, and that he relied to his detriment on this belief by settling with Magic Chef for a small amount, assuming that he could obtain a “meaningful recovery” against Eagle. Estoppel requires “reasonable reliance.” Phelps v. Federal Emergency Management Agency, 785 F.2d 13, 16 (1st Cir.1986). We simply do not think it would have been reasonable, absent some express representation by Eagle, for Pessotti to assume that Eagle would not pursue a defense it had pleaded. Furthermore, the merits of Pessotti’s claim were vigorously disputed by Eagle. Therefore, even assuming that it was reasonable for Pessotti to believe that Eagle would not pursue its limitations defense, it would still have been unreasonable for Pessotti, in deciding whether to settle with Magic Chef, to assume he could recover a significant amount from Eagle.
B. Relation Back
We have held above, notwithstanding structural differences between Massachusetts and federal relation back practice, that there was no error in the timing and procedure followed in making the relation back decision under the law of either jurisdiction. We next consider whether the district court erred substantively in deciding that the amended claim against Eagle did not relate back. We think not. It is not disputed that under Federal Rules of Civil Procedure 15(c) Pessotti’s amended complaint would not relate back. Because we find that the identical result obtains under Massachusetts law, we need not decide which law applied.
In 1988 the Massachusetts legislature enacted St.1988 c. 141, § 1, which allowed amendment of a complaint if the party requesting amendment sought “recovery for the injury for which the action was intended to be brought.” 1988 Mass.Acts c. 141 § 1, codified at Mass.Gen.L. ch. 231, § 51. The legislature further provided that the act was to apply to all actions pending as of July 14, 1988. 1988 Mass.Acts c. 141, § 2. This case would, therefore, be governed by that statute, which permits the amendment of a complaint to bring in a new party under a new theory of liability. As already noted, if an amended complaint is allowed, it automatically relates back. Mass.Gen.L. ch. 231, § 51.
Because relation back is automatic upon the allowance of an amended complaint, the factors which would counsel against relation back must be considered by the trial court in deciding whether to allow the amendment. Thus, the Massachusetts Supreme Judicial Court has stated:
[t]he decision whether to allow a motion to amend a pleading is a discretionary decision and depends upon a judge’s weighing of several factors. Factors to be considered in making such a decision include undue delay by the moving party, imminence of trial, and undue prejudice to the opposing party, [citations omitted].
Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 621-22, 537 N.E.2d 99, 106 (1989). Subsequent Massachusetts cases appear to provide that “undue delay” alone is a sufficient reason to deny the amendment of a complaint, and that an explicit showing of some other factor such as prejudice is not required. The Supreme Judicial Court recently held that “unexcused delay in seeking to amend is a valid basis for denial of a motion to amend.” Mathis v. Massachusetts Electric Co., 409 Mass. 256, 265, 565 N.E.2d 1180, 1185 (1991). Furthermore, the Massachusetts Appeals Court has held that “[t]he policies which support the extin-guishment of claims after limitations periods speak against allowing such amendments against new defendants.” Christopher v. Duffy, 28 Mass.App. 780, 785, 556 N.E.2d 121, 124 (1990). One of the policies of a statute of limitations is that a bright line cutoff is needed because one can never be sure whether or not the passage of time has prejudiced a defendant. This policy would, of course, counsel against requiring an explicit showing of prejudice. Nevertheless, because Massachusetts law on this question is not completely settled, we shall assume for present purposes that prejudice as well as undue delay is required before a court may deny an amendment under these circumstances. See id. at 784, 556 N.E.2d at 123 (“We need not consider whether undue delay in seeking amendment can on occasion be itself sufficient to warrant a court’s denying the leave”).
The district court expressly found that Eagle “was prejudiced by undue delay.” As a combination of prejudice and undue delay is sufficient reason under Massachusetts law for a court to refuse to allow an amendment, the district court’s decision may be overturned here only if this finding is clearly erroneous. Cf. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 525, 536 N.E.2d 344, 350 (1989) (standard of review of findings of fact in bench trial is clear error). The district court’s finding of undue delay is supported by the record. Pessotti testified at trial that, at the time he sued Magic Chef, he believed the manufacturer of the can, as well as Magic Chef, was responsible for his injuries. However, he said he could not determine the manufacturer of the can because it had been thrown away on the day of the accident, and only when his expert discovered the negatives did he determine that Eagle had manufactured the can. The district court found that “with just a bit more diligence, plaintiff and others acting on his behalf would have discovered the crucial photographs long before the limitation period expired.” The police report, prepared on May 12, 1979, stated that “Officer] Chan-donait arrived and took photos. He also took possession of the can_” Pessotti’s neighbor, John Resnik, testified at trial that he had seen a police officer come out of Pessotti’s home carrying a gasoline can with a picture of an Eagle on the side. Given that the manufacturer’s identity could have been, and ultimately was, determined from the police report, and Pessotti’s neighbor recalled that the police had been on the scene and removed the can, we think the record supports the district court’s conclusion that Pessotti’s delay in naming Eagle was undue.
The district court’s finding of prejudice is likewise supported by the record. Pessotti argues that this finding was error because the only contested issue in the case concerned the adequacy of the warnings on the can, which did not depend on prompt investigation or fresh memories. Even though the trial centered on the adequacy of the warnings, however, there was significant evidence which did in fact depend on witnesses’ memories. Westford Police Sergeant David Hogg testified that an ambulance attendant had told him that Pessotti, immediately after the accident, said the fumes must have been ignited by the pilot light. This evidence tended to show that Pessotti knew his stove’s pilot light was on at the time of the accident, so that a warning on the gasoline can concerning the hazards of continuously burning pilot lights would have been superfluous. However, in subsequent testimony, Hogg stated that, after giving his original testimony, he had questioned its accuracy. He had then called the ambulance driver to discuss their conversation on the day of the accident, and noted his concerns to Pessotti’s lawyer and the court. As a result, Hogg was recalled and testified that it was he, not Pessotti, who had speculated that the fumes had been ignited by the pilot light. Sergeant Hogg’s changed testimony clearly damaged Eagle’s case. We cannot know what Sergeant Hogg would have said if the case had been tried earlier, but we think that, given the inconsistencies in this important testimony, presented eleven years after the incident, the district court did not clearly err in finding that Eagle had been prejudiced by Pessotti's four year delay in bringing it into the case.
Conclusion
Under Massachusetts law, the district court’s decision that the amended corn-plaint should not have been allowed was not an abuse of discretion. Nor did federal procedural law bar the district court from reconsidering its earlier order allowing amendment when it ruled on the motion for judgment notwithstanding the verdict. As the same result would obtain under federal relation back law, Eagle must prevail on its limitations defense. We need not consider, therefore, whether the evidence supports the verdict on the merits. The judgment of the district court in Pessotti’s appeal, No. 90-2182, is affirmed. As affirmance of the judgment in No. 90-2182 moots Eagle’s appeal in No. 90-2188, that appeal is dismissed. Costs are awarded to Eagle against Pessotti in No. 90-2182; both parties shall bear their own costs in No. 90-2183.
. “Any amendment allowed pursuant to this section or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original proceedings." Mass.Gen.L. ch. 231, § 51.
. Federal Rule of Civil Procedure 15(a) sets forth the conditions under which a party may amend his complaint without mentioning whether an amendment relates back. Rule 15(c) then provides the limited conditions under which an amended complaint will relate back. (It is undisputed those conditions were not met here.) Thus, unlike in Massachusetts, the mere allowance of an amendment does not resolve the relation back issue favorably to the amending party.
. In a memorandum submitted to the district court in opposition to the judgment notwithstanding the verdict, Pessotti argued that Eagle should have objected to the amended complaint soon after it was brought into the case in order to allow Pessotti to present evidence concerning lack of prejudice to Eagle. He also argued that Eagle was estopped to raise the issue, and that the allowance of the amended complaint was a discretionary ruling that could not be altered after judgment. In addition to rejecting these arguments, the district court ruled, sua sponte, that federal procedural law permitted it to reconsider its earlier ruling. However, the specific argument that no proper objection had been raised because Massachusetts law provides that an amended complaint automatically relates back was not presented to the district court.
. Pessotti also argues that Eagle's answer only asserted a limitations defense without noting the relation back issue or challenging the allowance of the amended complaint. We think it would have been unreasonable for Pessotti to assume that Eagle would not pursue its limitations defense because it did not immediately raise all the underlying arguments necessary to support that defense.
. While they do not merit extended discussion, we reject several additional arguments of Pes-sotti. First, it was not error to grant the judgment notwithstanding the verdict on relation back grounds because judgment had already been entered on the jury verdict. Pessotti argues that this would interfere with the finality of judgments or appear to have been motivated by a disagreement with the jury verdict on the merits. This argument ignores that the district court expressed grave doubts on the relation back question at the hearing on Eagle’s motion for a directed verdict, but decided to submit the case to the jury because a jury verdict for Eagle would moot the question. This is a common and well accepted practice, which did not constitute error. Second, we must reject Pessotti's argument that the decision to amend the complaint was, under Massachusetts law, a procedural decision which could not be changed after judgment. In addition to ignoring the district court’s reason for submitting the case to the jury, this argument ignores the fact that the court, unsure whether Massachusetts or federal law would apply, had only allowed the original complaint subject to a later determination as to whether the complaint would relate back. Third, we think that the issues presented in Eagle’s motion for judgment notwithstanding the verdict were preserved by its motion for a directed verdict. Although Eagle's motion for a directed verdict stated only that Pessotti's complaint was "barred by laches and/or the applicable statute of limitations” (among other merits related grounds), at a hearing on the motion the parties argued extensively about Massachusetts law concerning the amendment of complaints. Thus we reject Pessotti’s argument that the issue ruled upon by the court in the judgment notwithstanding the verdict had not been presented in Eagle’s motion for a directed verdict. Finally, we reject Pessotti’s argument that the district court should have imposed an abuse of discretion standard on itself in vacating its earlier order. If any ruling by the district court was entitled to deference by the district court itself, it was the judgment notwithstanding the verdict which, unlike the allowance of the amended complaint, was made after full briefing and argument.
. The choice of law question does not present an important or unsettled question of law, requiring resolution on that ground. In Marshall v. Mulrenin, 508 F.2d 39 (1st Cir.1974), this circuit held that Massachusetts law governed under very similar circumstances. Eagle now argues that Marshall has been overruled by Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). A proposed amendment to the Federal Rules of Civil Procedure— which, absent Congressional action to the contrary, will take effect December 1, 1991 — will explicitly provide that Marshall remains good law. See Proposed Amendment to Fed.R.Civ.P. 15(c) advisory committee's note, printed in Federal Civil Judicial Procedure and Rules (West 1991) (“[if Schiavone ] implies the contrary [of Marshall ], this paragraph is intended to make a material change in the rule”). Since the issue will be resolved by the amended rule, there is no need for this court to decide whether Marshall remained good law in the interim between Schiavone and the effective date of the amendment.
.This conclusion is not altered by the jury’s answer of "no” to the question ”[d]o you find that the plaintiff failed to provide defendant with reasonably timely notice of his claim?” This question was presented to the jury on a verdict form because Pessotti’s warranty claim under Massachusetts law required such notice. See Mass.Gen.L. ch. 106, § 2-607(3)(a). We need not decide whether the questions of "reasonably timely notice” for purposes of the warranty claim and "undue delay” for purposes of allowing the amended complaint are the same. The decision whether to allow the amended complaint was a discretionary decision to be made by the court. The court’s findings of fact in support of that decision are not altered by an allegedly inconsistent jury finding rendered for another purpose.
. The court overruled a hearsay objection to this evidence on grounds not relevant here.
. We do not think it is necessary to resolve the parties’ arguments over whether the problem with Sergeant Hogg’s testimony would have been prevented had Eagle deposed him as soon as it was brought into the case. Neither we, nor the trial court, nor Hogg himself can say whether this is true. We are satisfied that the possibility that Sergeant Hogg’s changed testimony prejudiced Eagle is sufficient to support the district court's finding of prejudice. Indeed, a specific finding of prejudice is only necessary on the assumption that Massachusetts law requires such a finding, and Pessotti’s argument points out the problems inherent in this requirement. If anything, Pessotti’s argument provides a strong reason to believe that a specific finding of prejudice could not feasibly be required by Massachusetts law.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_caseorigin
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071
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
SMITH, SHERIFF v. GOGUEN
No. 72-1254.
Argued November 12-13, 1973
Decided March 25, 1974
Powell, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, and Marshall, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 583. Blackmun, J., post, p. 590, and Rehnquist, J., post, p. 591, filed dissenting opinions, in which Burger, C. J., joined.
Charles E. Chase, Assistant Attorney General of Massachusetts, argued the cause for appellant. With him on the briefs were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and David A. Mills, Assistant Attorneys General, and William T. Buckley.
Evan T. Lawson argued the cause for appellee. With him on the brief were Matthew Feinberg and Burt Neuborne.
Mr. Justice Powell
delivered the opinion of the Court.
The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F. 2d 88 (1972), aff’g 343 F. Supp. 161 (Mass). We noted probable jurisdiction. 412 U. S. 905 (1973). We affirm on the vagueness ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.
I
The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers. The flag was approximately four by six inches and was displayed at the left rear of Goguen’s blue jeans. On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen’s apparel. No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominster.
The following day the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag-misuse statute. The relevant part of the statute then read:
“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States..., whether such flag is public or private property..., shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both....”
Despite the first six words of the statute, Goguen was not charged with any act of physical desecration. As permitted by the disjunctive structure of the portion of the statute dealing with desecration and contempt, the officer charged specifically and only that Goguen “did publicly treat contemptuously the flag of the United States.
After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, - Mass. -, 279 N. E. 2d 666 (1972). That court rejected Goguen’s vagueness argument with the comment that “[wjhatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here.” Id., at-, 279 N. E. 2d, at 667. The court cited no Massachusetts precedents interpreting the “treats contemptuously” phrase of the statute.
After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. 343 F. Supp. 161. The District Court found the flag-contempt portion of the Massachusetts statute impermissibly vague under the Due Process Clause of the Fourteenth Amendment as well as over-broad under the First Amendment. In upholding Go-guen’s void-for-vagueness contentions, the court concluded that the words “treats contemptuously” did not provide a “readily ascertainable standard of guilt.” Id., at 167. Especially in “these days when flags are commonly displayed on hats, garments and vehicles...,” the words under which Goguen was convicted “leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution.” Ibid. The court also found that the statutory language at issue “may be said to encourage arbitrary and erratic arrests and convictions.” Ibid.
The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amendment and vagueness grounds. 471 F. 2d 88. With regard to the latter ground, the Court of Appeals concluded that “resolution of [Goguen’s void-for-vagueness] challenge to the statute as applied to him necessarily adjudicates the statute’s facial constitutionality....” Id., at 94.. Treating as-applied and on-the-face vagueness attacks as essentially indistinguishable in light of the imprecision of the statutory phrase at issue, id., at 92, 94, the court found that the language failed to provide adequate warning to anyone, contained insufficient guidelines for law enforcement officials, and set juries and courts at large. Id., at 94-96. Senior Circuit Judge Hamley, sitting by designation from the Ninth Circuit, concurred solely in the void-for-vagueness holding. Id., at 105. Judge Hamley saw no need to reach the “far broader constitutional ground” of First Amendment overbreadth relied on by the majority, noting the “settled principle of appellate adjudication that constitutional questions are not to be dealt with unless this is necessary to dispose of the appeal.” Ibid.
II
We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent “arbitrary and discriminatory enforcement.” Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts. The statutory language at issue here, “publicly... treats contemptuously the flag of the United States...,” has such scope, e. g., Street v. New York, 394 U. S. 576 (1969) (verbal flag contempt), and at the relevant time was without the benefit of judicial clarification.
Flag contempt statutes have been characterized as void for lack of notice on the theory that “[w]hat is contemptuous to one man may be a work of art to another.” Goguen’s behavior can hardly be described as art. Immaturity or “silly conduct” probably comes closer to the mark. But we see the force of the District Court’s observation that the flag has become “an object of youth fashion and high camp... 343 F. Supp., at 164. As both courts below noted, casual treatment of the flag in many contexts has become a widespread contemporary phenomenon. Id., at 164, 167; 471 F. 2d, at 96. Flag wearing in a day of relaxed clothing styles may be simply for adornment or a ploy to attract attention. It and many other current, careless uses of the flag nevertheless constitute unceremonial treatment that many people may view as contemptuous. Yet in a time of widely varying attitudes and tastes for displaying something as ubiquitous as the United States flag or representations of it, it could hardly be the purpose of the Massachusetts Legislature to make criminal every informal use of the flag. The statutory language under which Goguen was charged, however, fails to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not. Due process requires that all “be informed as to what the State commands or forbids," Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939), and that “men of common intelligence" not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U. S. 385, 391 (1926). Given today’s tendencies to treat the flag unceremoniously, those notice standards are not satisfied here.
We recognize that in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language. In such cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other-principal element of the doctrine — the requirement that a legislatum-establish minimal guidelines to govern law enforcement, — I-f4s-in this regard that the statutory^_language under scrutiny has its most notable deficiencies.
In its terms, the language at issue is sufficiently unbounded to prohibit, as the District Court noted, “any public deviation from formal flag etiquette....” 343 F. Supp., at 167. Unchanged throughout its 70-year history, the “treats contemptuously” phrase was also devoid of a narrowing state court interpretation at the relevant time in this case. We are without authority to cure that defect. Statutory language of such a standardless. sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. Ill, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:
“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an 'America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).
Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.
Ill
Appellant’s arguments that the “treats contemptuously” phrase is not impermissibly vague, or at least should not be so held in this case, are unpersuasive. Appellant devotes a substantial portion of his opening brief, as he did his oral argument, to the contention that Goguen failed to preserve his present void-for-vagueness claim for the purposes of federal habeas corpus jurisdiction. Appellant concedes that the issue of “vagueness as applied” is properly before the federal courts, but contends that Goguen’s only arguable claim is that the statute is vague on its face. The latter claim, appellant insists, was not presented to the state courts with the requisite fair precision. Picard v. Connor, 404 U. S. 270 (1971). This exhaustion-of-remedies argument is belatedly raised, and it fails to take the full measure of Goguen’s efforts to mount a vagueness attack in the state courts. We do not deal with the point at length, however, for we find the relevant statutory language impermissibly vague as applied to Goguen. Without doubt the “substance” of this claim was “fairly presented” to the state courts under the exhaustion standards of Picard, supra, at 275, 278.
Appellant’s exhaustion-of-remedies argument is premised on the notion that Goguen’s behavior rendered him a hard-core violator as to whom the statute was not vague, whatever its implications for those engaged in different conduct. To be sure, there are statutes that by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes. The present statute, however, is not in that category. This criminal provision is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct.is specified at all.” Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971). Such a provision simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause. The deficiency is particularly objectionable in view of the unfettered latitude thereby accorded law enforcement officials and triers of fact. Until it is corrected either by amendment or judicial construction, it affects all who are prosecuted under the statutory language. In our opinion the defect exists in this case. The language at issue is void for vagueness as applied to Goguen because it subjected him to criminal liability under a standard so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.
Turning from the exhaustion point to the merits of the vagueness question presented, appellant argues that any notice difficulties are ameliorated by the narrow subject matter of the statute, viz., “actual” flags of the United States. Appellant contends that this “takes some of the vagueness away from the phrase, ‘treats contemptuously Anyone who “wants notice as to what conduct this statute proscribes..., immediately knows that it has something to do with flags and if he wants to stay clear of violating this statute, he just has to stay clear of doing something to the United States flag.” Apart from the ambiguities presented by the concept of an “actual” flag, we fail to see how this alleged particularity resolves the central vagueness question — the absence of any standard for defining contemptuous treatment.
Appellant’s remaining arguments are equally unavailing. It is asserted that the first six words of the statute add specificity to the “treats contemptuously” phrase, and that the Massachusetts Supreme Judicial Court customarily construes general language to take on color from more specific accompanying language. But it is conceded that Goguen was convicted under the general phrase alone, and that the highest state court did not rely on any general-to-specific principle of statutory interpretation in this case. Appellant further argues that the Supreme Judicial Court in Goguen’s case has restricted the scope of the statute to intentional contempt. Aside from the problems presented by an appellate court’s limiting construction in the very case in which a defendant has been tried under a previously unnarrowed statute, this holding still does not clarify what conduct constitutes contempt, whether intentional or inadvertent.
Finally, appellant argues that state law enforcement authorities have shown themselves ready to interpret this penal statute narrowly and that the statute, properly read, reaches only direct, immediate contemptuous acts that “actually impinge upon the physical integrity of the flag....” There is no support in the record for the former point. Similarly, nothing in the state court's opinion in this case or in any earlier opinion of that court sustains the latter. In any event, Goguen was charged only under the wholly open-ended language of publicly treating the flag “contemptuously.” There was no allegation of physical desecration.
There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order. Cf. Colten v. Kentucky, 407 U. S. 104 (1972). But there is no comparable reason for committing broad discretion to law enforcement officials in the area of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing from one generation to another and often difficult to distinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw. Certainly nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags. The statutory language at issue here fails to approach that goal and is void for vagueness. The judgment is affirmed.
It is so ordered.
The record consists solely of the amended bill of exceptions Goguen filed in the Massachusetts Supreme Judicial Court, the opposing briefs before that court, the complaint under which Goguen was prosecuted, and Goguen’s federal habeas corpus petition. App. 1-36, 42-43. We do not have a trial transcript, although Goguen’s amended bill of exceptions briefly summarizes some of the testimony given by witnesses for the prosecution at his state trial. Goguen did not take the stand. Thus we do not have of record his account of what transpired at the time of his arrest or of his purpose in wearing a flag on the seat of his trousers.
Tr. of Oral Arg. 5-6, 35-36.
Mass. Gen. Laws Ann., e. 264, § 5. Omitting several sentences protecting the ceremonial activities of certain veterans' groups, the statute read as follows at the time of Goguen’s arrest and conviction: “§ 5. Flag; penalty for misuse
“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States or of Massachusetts, whether such flag is public or private property, or whoever displays such flag or any representation thereof upon which are words, figures, advertisements or designs, or whoever causes or permits such flag to be used in a parade as a receptacle for depositing or collecting money or any other article or thing, or whoever exposes to public view, manufactures, sells, exposes for sale, gives away or has in possession for sale or to give away or for use for any purpose, any article or substance, being an article of merchandise or a receptacle of merchandise or articles upon which is attached, through a wrapping or otherwise, engraved or printed in any manner, a representation of the United States flag, or whoever uses any representation of the arms or the great seal of the commonwealth for any advertising or commercial purpose, shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. Words, figures, advertisements or designs attached to, or directly or indirectly connected with, such flag or any representation thereof in such manner that such flag or its representation is used to attract attention to or advertise such words, figures, advertisements or designs, shall for the purposes of this section be deemed to be upon such flag.”
The statute is an amalgam of provisions dealing with flag desecration and contempt (the first 26 words) and with commercial misuse or other exploitation of flags of the State and National Governments. This case concerns only the “treats contemptuously” phrase of the statute, which has apparently been in the statute since its enactment in 1899. 471 F. 2d 88, 90 n. 2 (1972).
In 1971, subsequent to Goguen's prosecution, the desecration and contempt portion of the statute was amended twice. On March 8, 1971, the legislature, per Stats. 1971, c. 74, modified the first sentence by inserting “burns or otherwise” between the terms “publicly” and “mutilates,” and, in addition, by increasing the fine. Mass. Gen. Laws Ann., c. 264, § 5 (Supp. 1973). On August 12,1971, per Stats. 1971, c. 655, the legislature appended a new sentence defining “the flag of the United States” phrase appearing in the first sentence: “For the purposes of this section the term ‘flag of the United States' shall mean any flag which has been designated by Act or Resolution of the Congress of the United States as the national emblem, whether or not such designation is currently in force.” Ibid. The 1971 amendments are relevant to this case only in the tangential sense that they indicate a recognition by the legislature of the need to tighten up this imprecise statute.
Perhaps this was because of the difficulty of the question whether Goguen’s conduct constituted physical desecration of the flag. Cf. 471 F. 2d, at 91 n. 4 (“[W]e are not so sure that sewing a flag to a background clearly affects ‘physical integrity’ ”).
App. 4.
Appellant correctly conceded, at oral argument that Goguen’s case is the first recorded Massachusetts court reading of this language. Tr. of Oral Arg. 17-18. Indeed, with the exception of one case at the turn of the century involving one of the statute’s commercial-misuse provisions, Commonwealth v. R. I. Sherman Mfg. Co., 189 Mass. 76, 75 N. E. 71 (1905), the entire statute has been essentially devoid of state court interpretation.
The elements of the void-for-vagueness doctrine have been developed in a large body of precedent from this Court. The cases are categorized in, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960).
E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 162 (1972); Lametta v. New Jersey, 306 U. S. 451, 453 (1939) (“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids”) (citations omitted); Connolly v. General Construction Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”) (citations omitted).
E. g., Grayned, supra, at 108; United States v. Cohen Grocery Co., 255 U. S. 81, 89 (1921) (“[T]o attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury”); United States v. Reese, 92 U. S. 214, 221 (1876) (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large”).
E. g., Grayned, supra, at 109; Smith v. California, 361 U. S. 147, 151 (1959). Compare the less stringent requirements of the modern vagueness cases dealing with purely economic regulation. E. g., United States v. National Dairy Products Corp., 372 U. S. 29 (1963) (Robinson-Patman Act).
See n. 6, supra.
Note, 66 Mich. L. Rev. 1040, 1056 (1968).
343 F. Supp. 161, 166.
Note, 109 U. Pa. L. Rev., supra, n. 7, at 82 n. 79.
See n. 3, supra.
See n. 6, supra. The contempt portion of the Massachusetts statute seems to have lain fallow for almost its entire history. Apparently there have been about a half dozen arrests under this part of the statute in recent years, but none has produced a reported decision. Tr. of Oral Arg. 28-29. In 1968, a teenager in Lynn, Massachusetts, was charged, apparently under the present statute, with desecrating the United States flag by sewing pieces of it into his trousers. New York Times, Sept. 1, 1968, p. 31, col. 1. The teenager was ordered by a state district court to prepare and deliver an essay on the flag. The court continued the case without a finding, depriving it of any precedential value.
E. g., United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971
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Answer:
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songer_appel1_3_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America, Appellant, v. Gordon SIMMONS and I. V. Simmons, Executors of the Estate of B. Hill Simmons, Appellees.
No. 21464.
United States Court of Appeals Fifth Circuit.
May 27, 1965.
James F. Flug, Atty., Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept, of Justice, Washington, D. C., Donald H. Frazer, U. S. Atty., Savannah, Ga., Richard M. Roberts, Acting Asst. Atty. Gen., David O. Walter, Michael I. Smith, Attys., Dept, of Justice, Washington, D. C., for appellant.
Louis A. Thompson, Savannah, Ga., for appellees.
Before WISDOM and GEWIN, Circuit Judges, and BREWSTER, District Judge.
WISDOM, Circuit Judge:
This taxpayer’s suit for an estate tax refund grew out of executors’ settling for $42,000 an estate’s claim for an income tax refund of $60,000, listed in the estate tax return as having “no value” at the date of the decedent’s death.
The decedent, B. Hill Simmons, died December 27, 1955. Some time before his death, the Internal Revenue Service began investigating, on a net worth basis, Simmons’s income tax returns for the years 1941 through 1953. As a result of the investigation, the decedent paid a deficiency in the amount of $43,000. The decedent never entertained the idea of filing a claim for a refund of these taxes. Shortly after Simmons’s death, the executors of the estate employed an attorney, Mr. Louis B. Thompson, counsel for appellee, to investigate the decedent’s tax affairs. By November 1956 the attorney decided that a claim for a refund should be filed for the decedent’s taxable years 1941 through 1953. February 1, 1957, Mr. Thompson filed the claim for refund amounting to $60,000. Upon the Service’s disallowing the claim, Mr. Thompson filed suit on behalf of the estate. In 1960, the Department of Justice approved the executors’ offer of compromise for $41,187. Meanwhile, the taxpayer’s attorney had filed an estate tax return listing the income tax claim as having no value, but had requested that the estate tax liability be held in abeyance pending the outcome of the claim. The Commissioner determined that the claim was includible in the decedent’s estate and valued the claim at the amount of the settlement.
Under Section 2031 of the Internal Revenue Code of 1954, the federal estate tax includes “all property, real or personal, tangible or intangible” of the decedent. When Simmons died, his “property” included the claim for refund of federal income taxes. Both parties agree that the claim for refund of income taxes is a part of Simmons’s gross estate. But as far as it is possible to disagree as to value, they disagree: the United States contends that the amount of the compromise, $42,000, fixed the estate tax value of the claim; the Estate of B. Hill Simmons (the taxpayer) contends the claim had no value when Simmons died. The taxpayers asserts that at the time of death the executors thought the claim was worthless and would have sold it for $1,000. Allegedly, a key factor in filing the claim was the discovery in October 1956 of a pencil memorandum tending to disprove fraud in that it showed the decedent’s intention to report certain cotton sales that had not been reported. The executors paid the tax assessed against the estate and sued for a refund.
The district court submitted the issue of valuation to the jury. The jury found that the claim was valueless at the time of the decedent’s death. The district court denied the Government’s motions for a directed verdict, a judgment n. o. v., and a new trial. We hold that the trial court correctly denied the motions for a directed verdict and judgment n. o. v., but we reverse the judgment and remand the case for a new trial, because there was no rational basis for the jury’s finding that the claim for an income tax refund was valueless on the date of the decedent’s death.
I.
Since a motion for a judgment notwithstanding the verdict in effect renews an earlier motion for a directed verdict, the applicable judicial standard is the same for both motions. Fed.R. Civ.P. 50. Professor Wright comments on these two motions and on the motion for a new trial as follows:
“The motion for judgment n. o. v., like the motion for directed verdict, raises only the legal question whether there was enough evidence to make an issue for the jury. It differs from the motion for a new trial, where the court has a discretion to set aside a verdict and grant a new trial even if the verdict is supported by substantial evidence. The motion for judgment n. o. v., on the other hand, must be denied if there is any substantial evidence which would support a verdict. The credibility of witnesses and weight of the evidence, proper considerations on a motion for a new trial, are not the concern of the court on a motion for a directed verdict or for judgment n. o. v. The evidence must be viewed in the light most favorable to the party against whom the motion is made, he must be given the benefit of all legitimate inferences which may be drawn in his favor from that evidence, and the motion must be denied if, so viewed, reasonable men might differ as to the conclusions of fact to be drawn.” Wright, Federal Courts § 95 at 370.
See also 2B Barron & Holtzoff (Wright ed.) § 1075. Professor Moore writes: “In ruling on the motion for directed verdict or for judgment n. o. v. it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him.” 6 Moore, Federal Practice, § 59.08(5) at 3814.
Bearing these principles in mind, we hold that a review of the record shows abundant evidence to make an issue for the jury as to the value of the claim. The Commissioner contends, however, that the trial judge should have directed the verdict in favor of the United States or granted a judgment n. o. v. because, as a matter of law, the amount of the compromise fixed the value of the claim for estate tax purposes.
The few decided cases in this area of tax law reject the Commissioner’s contention. At one time the Board of Tax Appeals took the position that the amount later recovered on an income tax refund claim fixed the value of the claim for estate tax purposes. Security-First National Bank of Los Angeles, Executor of Estate of Milton Sills v. Commissioner, 1937, 35 B.T.A. 815; Estate of Harriet E. Barneson, 1941, P-H B.T.A. Memorandum Decisions 41,283. On appeal the Ninth Circuit reversed Barneson, sub nom., Bank of California, National Ass’n v. Commissioner, 9 Cir. 1943, 133 F.2d 428. The court held that the decedent’s claim for refund of income taxes was a part of the decedent’s gross- estate; that the value of the claim was the fair market value as between a willing buyer and a willing seller at the time of the decedent’s death. Instead of determining the fair market value, the Board had arbitrarily used the amount of the recovery. The Ninth Circuit remanded the case for a proper finding. On remand, the Board found that at the time of decedent’s death the fair market value of the claim was $4000 as against $8000 recovered in the taxpayers’ refund action. Estate of Harriet E. Barneson, 1945, P-H.B.T.A. Memorandum Decisions |¶ 45,129. Later cases support Barneson, at least by implication. See e. g., Duffield v. United States, E.D.Pa.1955, 136 F.Supp. 944; Estate of Isaac W. Baldwin v. Commissioner, T.C. Memo. 1959-203 D.N. 9446. Many of the cases the Government cites do not involve a determination of “fair market value”.
The Treasury Regulation applies the “willing buyer and seller test” to all questions of valuation. Reg. § 20.2031-1(b). When, as in this case, the claim cannot be lawfully sold or assigned, the test approaches the outer limits of an acceptable test. However, we cannot say that the regulation exceeds the statutory authority of the Treasury. And the test probably cuts across the board with a minimum of harm about as well as any other test that might be devised. See Frank, J. in Commissioner of Internal Revenue v. Marshall, 2 Cir. 1942, 125 F. 2d 943, 141 A.L.R. 445.
Applying the willing buyer and seller test to the claim for income tax refund, we see no reason for concluding that the amount of the settlement necessarily represents the fair market value of the claim at the date of death. The amount of the settlement is relevant but not conclusive.
The issue was a factual one for the jury. The record supports the trial judge’s denial of the motions for a directed verdict and a judgment n. o. v.
II.
“A motion for new trial (Fed.R.Civ.P. 59) unlike the motion for directed verdict or for judgment n. o. v. * * * is addressed to the sound discretion of the trial court; and the grant or denial of a motion for new trial is not reviewable, except where the trial court acts under the compulsion of a mistake of law, or lacks power to grant the motion, as where the motion is not timely, or where the court failed to exercise its discretion, or where it abuses its discretion. And a motion for a new trial on the ground that the verdict is against the weight of the evidence and the trial court’s ruling thereon are within the foregoing principles.” 6 Moore, Federal Practice § 59.08 at 3816.
If the jury had found that, based on “a reasonable knowledge of relevant facts” (Reg. § 20.2031-l(b)), the claim for a tax refund, at the moment of the decedent’s death, had a much smaller value than the amount of the settlement, we would not question the jury’s finding. But there is no rational basis in the evidence for the jury to bring in a verdict that the claim had no value.
For estate tax purposes, a value must be fixed for each asset in a decedent’s estate. Reg. §§ 20.2031-1 (b) and 20.2031- 2 through 20.2031-7. The regulations define “value” as “fair market value”. This is the “price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts”. Reg. § 20.2031- 1 (b).
Reasonable knowledge of the relevant facts would have revealed to the decedent and his accountant, as later discovered by present counsel, that there were gross errors in the revenue agent’s report sent to the decedent nine months before his death. And reasonable knowledge of decedent’s records would have led the decedent, his accountant, attorney, and executors to know that a certain memorandum tended to rebut the Commissioner’s finding of fraud. All of the records were in existence and among the decedent’s papers when he died.
In similar circumstances the Tax Court has held that the later discovered facts determine the value of the property at the date of death: The Tax Court said:
“Even if the executors were totally ignorant of the claim, we do not agree that it would for that reason be without value. An estate may possess many assets, tangible and intangible, of which the deceased’s representative or even the deceased himself may be unaware, and which may not become apparent until the lapse of a substantial period of time after death. Such property is for that reason no less an asset of the estate, nor can it necessarily be said to be valueless at the date of death. This is particularly true where, as here, the asset is one which by its nature is discoverable in the ordinary course of administration of the estate.” Estate of I. W. Baldwin, 1959, P-H. T.C. Memo ¶ 59,203.
The administration of every estate involves a delay before the succession representative knows all the relevant existing facts affecting the value of the property. The federal estate tax law is sufficiently flexible and realistic to take account of this delay.
The taxpayer contends that what brought the claim into being was a memorandum Mr. Thompson “discovered [October 1956] among a bunch of old papers that appeared to be of no value”. This memorandum concerned the sale of seven bales of cotton for $5,954.80. In one corner, in the decedent’s handwriting, were the words “income taxes”. One of the executors testified that the memorandum showed that the decedent “had no intention to defraud, and it would be impossible for the agent to go further back than three years in the investigation”.
This discovery may have affected the taxpayer’s appraisal of the claim. But the claim existed wholly apart from the memorandum. The “willing buyer and seller” are a hypothetical buyer and seller having a reasonable knowledge of relevant facts. It is impossible to believe that Congress intended valuation to be tested subjectively according to the state of mind of the executor making the return in question, the valuation depending on whether he was diligent and efficient in examining the decedent’s records.
In any event, the relevancy of the memorandum to the issue of valuation does not mean that all other evidence is irrelevant. The record shows conclusively that the claim had value and was considered to have value wholly aside from the memorandum. The original attorney for the estate, just a few days after the decedent’s death, December 27, 1955, recommended that the executors employ Mr. Thompson to inquire into the possibility of income tax refunds. March 22, 1956, within three months after the date of death, the executors engaged Mr. Thompson to make “a detailed investigation into the financial affairs and transactions” of the decedent. A week later they authorized him to file claims for refund of income taxes. By that time he had been “going through the records * * * and had come up with some evidence that several mistakes had been made”. April 5, 1956, the estate’s preliminary estate tax notice referred to a “contingent claim pending for refund of taxes, penalties, and interest on Fed. and State income taxes”. Thus, there is no doubt that before the discovery of the memorandum in October 1956, the executors, knew that the estate had a claim worth something. The executors, attorneys, and accountants simply had not sufficiently examined the decedent’s records to be able to make an intelligent guess as to the value of the claim and to support the claim with evidence. But the evidence was always there to be found. The revenue agents testified that as soon as the full facts were known to them or to their superiors, the value of the claim was accepted. Mr. Thompson testified that all of the relevant facts existed at the time of Simmons’s death, and that with full knowledge of these facts he reluctantly recommended that the estate settle for $4200. He would have discovered the agents’ errors along with the memorandum had Simmons retained him. In short, ignorance of the value of an asset at the time of a decedent’s death does not justify treating the asset as valueless, any more than ignorance of the existence of an asset, discovered after the date of death, justifies exclusion of the asset from the decedent’s gross estate.
Finally, although we do not accept the extreme position taken by the Government, that the amount of the compromise was necessarily the value of the claim at the time of death, that amount is certainly highly indicative of the fact that the claim had value at the time of Simmons’s death.
We11 are conscious of the limited scope of appellate review of a judgment entered on a jury’s verdict. But as Judge Rives has said:
“[T]his Court owes a duty not as a mere automaton, but as a judicial function to determine whether there is really a rational basis for a jury’s verdict. * * * Unless every jury verdict in cases of this kind is to be upheld, this one should be set aside * * Cole v. Usry, 5 Cir. 1961, 294 F.2d 426, at 430.
Considering this case in its entirety, we conclude that the controlling facts make it utterly unreasonable for the jury to bring in a verdict that the refund claim had no value at the time of the decedent’s death. The absence of any rational basis for the jury’s verdict makes it a mistake of law for the trial judge to deny the motion for a new trial.
III.
The appellant also objected to the district court’s charge to the jury. We consider that the charge was generally correct although, in the circumstances of this case, on remand the court should eliminate the words "if any”, to remove the implication that the jury was free to find that the claim had no value. We suggest, too, that without unduly complicating the charge, the court add a sentence to inform the jury that “reasonable knowledge of relevant facts”, within the meaning of Reg. 20.2031 includes knowledge of documents in existence at the time of death and later discovered by the estate’s attorney. The judgment below is reversed and remanded.
. E. g., Commissioner of Internal Revenue v. Estate of Shively, 2 Cir. 1960, 276 F.2d 372; Rose v. United States, 10 Cir. 1942, 128 F.2d 622.
. “I charge you that the standard of value contemplated by the estate tax statute is the fair market value of property at the time of the owner’s death which fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither under compulsion to buy or sell.
“Time of death, as used in provision requiring assets to be included at their value at date of death of decedent, means the exact moment of death.
“Also Gentlemen, one of the important issues in this case is the value, if any, of the taxpayer’s contingent claim for refund of income taxes. The value, if any, to be determined by you is the fair market value on the date of death of the decedent. You have heard evidence of the final refund received by the estate; however, this does not determine the fair market value of the claim at the date of death.
“In determining the value of the claim for refund, if any, you may consider the fact that the Government denied the claim upon receipt thereof and that it was necessary to bring an action in court before the Government would make refund.” (Emphasis added.)
Question: This question concerns the first listed appellant. 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:
|
sc_caseorigin
|
111
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
GIBSON v. LOCKHEED AIRCRAFT SERVICE, INC.
No. 42.
Argued December 5-6, 1955.
Decided February 27, 1956.
G. C. Spillers, Jr. argued the cause for petitioner. With him on the brief were G. C. Spillers and Edward C. Fritz.
Emory A. Cantey argued the cause for respondent. With him on the brief were R. K. Hanger and David O. Belew, Jr.
Per Curiam.
Petitioner Gibson recovered judgment in a personal injuries action against the Lockheed Company in a United States District Court. The Court of Appeals for the Fifth Circuit reversed and remanded for a new trial on the ground that four instructions requested by Lockheed and refused by the trial court should have been given. 217 F. 2d 730. We granted certiorari, 349 U. S. 943, to consider the following questions:
(1) Whether Lockheed's objection to the trial court’s refusal to give its requested instructions complied with Rule 51 of the Federal Rules of Civil Procedure.
(2) Whether the refusal of the trial court to charge as requested by respondent Lockheed was prejudicial error requiring reversal.
A thorough consideration of the record convinces us that the charge as given by the trial court was both complete and correct. Cf. District of Columbia v. Woodbury, 136 U. S. 450, 466. There was no error in refusing the requested instructions. We consider this to be a case where, in the exercise of our supervisory powers over the lower federal courts, the judgment of the Court of Appeals should be reversed in the interests of justice, and that of the District Court reinstated. Accordingly, we find it unnecessary to consider the question presented as to Rule 51.
Reversed.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES v. CHICAGO, B. & Q. R. CO.
No. 5964.
Circuit Court of Appeals, Seventh Circuit.
April 12, 1937.
Harry W. Blair, Asst. Atty. Gen., John J. Boyle, U. S. Atty., of Madison, Wis., and D. B. Hempstead and A. C. Wiprud, Sp. Assts. to the Atty. Gen.
Andrew Lees, of La Crosse, Wis., and Andrew C. Scott and J. C. James, both of Chicago, 111. (Bruce Scott, of Chicago, 111., of counsel), for appellee.
Before SPARKS, Circuit Judge, and BRIGGLE and BALTZELL, District Judges.
SPARKS, Circuit Judge.
This is an appeal from a judgment of the District Court assessing damages in condemnation' proceedings instituted by the Government with respect to the navigation project of the Mississippi River, authorized by an Act of Congress approved January 21, 1927, 44 Stat. 1010. Two actions at law are involved, and numerous questions are presented, which render necessary a rather full statement of the issues of both causes and the manner in which they were disposed of.
On September 19, 1931, the Government filed its action No. 3683, to condemn 2.9 acres of land in the city of Alma, Wisconsin. It was alleged that that land was a part of the site of Lock and Dam No. 4 as contemplated by the project, which was about to be begun. The action was brought against appellee and numerous other corporate bodies and natural persons, who, it was alleged, constituted, as nearly as the Government could ascertain, all persons claiming to be the owners or occupants of those lands, or claiming any right, title, equity or interest therein.
On August 9, 1932, the Government amended its original petition by reducing the amount of land sought to be condemned to 1.6 acres, and retained as defendants the appellee and several hundred others who, as alleged, were claiming some interest therein. The amended bill further stated that the proposed dam should have a crest elevation of 667 feet mean sea level, intended to provide a pool no higher than 667 feet, mean sea level at the dam.
On August 17, 1932, the court, over the Government’s objections and exceptions, sustained appellee’s motion to make the amended petition more specific, and ordered the same done by filing plans of the lock and dam to be built, or sufficient information as to the structural and engineering features thereof, to enable appellee to determine and make proof of the damage to the remainder of its property resulting from the construction, operation and maintenance of the lock and dam.
On December 3, 1932, the Government complied with this order by amending its amended petition, in which it was stated, among other matters, that the dam would be of a nonnavigable type with a controlled spillway section 1,355 feet long, having a crest elevation of 667 feet mean sea level datum; that the top of the lock and guide walls would be at elevation 672 feet mean sea level, and that the spillway would be so controlled as to maintain a pool elevation at 667 feet. The official map filed with the amendment disclosed the elevation of the pool along the upper side of the dam to be 667.
Following the hearing on the amended petition, an order was entered January 14, 1933, granting the condemnation of the property described in the amended petition, and appointing commissioners to fix the compensation for its taking. On January 25, 1933, the Government applied for immediate possession of the condemned 1.6 acres, alleging the value thereof to be not in excess of $500. On the same day the court granted the application conditioned on the deposit of $110,000 with the court, as security for the payment of such just compensation as might be finally awarded. This order was complied with without objection or exception on the part of the Government. On January 31, 1933, on the motion of appellee, and over objections and exceptions by the Government, the court amended its order granting condemnation and appointing commissioners by adding to that portion of the order directing the commissioners to ascertain, award and report the compensation for the property taken as described in the amended complaint, the following words, “together with all damages to the remainder of respondent’s property resulting from the construction and operation of the lock and dam described in the petition herein.”
Pursuant thereto, the commissioners made, and on June 7, 1933, filed, their award for the value and damages to be sustained by reason of the appropriation. They were made in varying amounts to eleven named respondents in the aggregate sum of $4,627, and to appellee for the taking of its interest in the 1.6 acres of land in the sum of $160, together with damages to its roadbed, track and bridge across Beef River from Alma to Trevino, in Buffalo County, Wisconsin, in the sum of $84,296. From all of these awards the Government appealed on June 29, 1933, to the District Court.
On October 16, 1933, the Government filed its petition in law, No. 3767, against appellee and other defendants, to condemn certain lands in fee (none of which was owned by appellee), and certain easements in lands to an elevation of 670 feet above mean sea level datum (1912 adjustment) for flowage in connection with Lock and Dam No. 4. Included in this easement sought to be appropriated was a flowage easement upon that portion of appellee’s right of way within the area described in the petition which extends northwesterly, across what is known as Beef Slough, to a point about six miles above the 1.6 acre tract condemned in cause No. 3683. The petition in No. 3767 contained the following allegation:
“That your petitioner by naming herein any person or persons as owners or otherwise interested does not admit or intend to admit that any person or persons so named have any right, title, estate, or interest in or to the bed of the Mississippi river below ordinary high water mark, or the meander line, as against your petitioner in ■the improvement of navigation of said river.”
On December 11, 1933, the District Court granted the condemnation, and on motion of the Government it made an order on January 23, 1934, reducing the easements condemned to an elevation of 667 feet above mean sea level datum (1912 adjustment). This included the easement of appellee’s right of way. The commissioners filed their award on May 28, 1934, for the flowage easement condemned on appellee’s right of way in the sum of $81,194. From this award the Government appealed to the District Court.
The claims of appellee before the commissioners in causes numbered 3683 and 3767 embraced approximately the same portion of its right of way. All the flowage rights on appellee’s property sought by the Government in the second suit had been included in the original suit. For the purpose of trial they were.consolidated in the District Court. The cases were tried to a jury which, at appellant’s request, returned a special verdict by way of answers to interrogatories finding for appellee in the aggregate amount of $347,811.65, that is to say, $400 by way of compensation for appellee’s interest in the 1.6 acres, and $347,-411.65 for damages proximately caused by the continuous maintenance and operation of the Alma dam at a pool level no higher than 667 feet above mean sea level at the dam.
At and above the Alma dam for a distance of ten or twelve miles, the Mississippi valley consists of a flat alluvial flood plain about three miles wide, extending northwesterly from the dam between high rock bluffs. Larger floods cover the entire valley floor, except for occasional ridges and knolls which extend above the extreme high water. The main channel of the river in this area is the boundary between Minnesota and Wisconsin.
From a point about twelve miles upstream from the dam, the Mississippi valley floor lies at a much lower level and is covered with water ranging from a few feet to forty feet in depth, constituting a segment of the river, known as Lake Pepin, approximately twenty miles in length, and from two to three miles wide in places.
The two longest tributaries of the Mississippi in this region are the Beef and Chippewa rivers, which enter from the Wisconsin side. The Beef River drains about 440 square miles and enters the Mississippi, through Beef Slough, about a mile and' a half above the dam. The Chippewa drains an area of 9480 square miles and enters the Mississippi about 10.7 miles above the dam. Both tributaries have valleys similar to the Mississippi but vary in width in proportion to the size of' the stream. The valley of Beef River is about three-fourths of a mile wide near its mouth and becomes narrower towards its source. The Chippewa is about four miles wide at its mouth, and narrows down to about a fourth of a mile at a point fifteen miles from its mouth. The floors of these tributary valleys are also subject to inundation when they are in flood. A small tributary, known as Rush River, draining an area of about 200 square miles, enters Lake Pepin from the Wisconsin side twenty-eight miles above the dam. It is about eighty feet wide at its mouth.
Appellee’s railroad in the vicinity of Alma extends along the easterly bank of the Mississippi. Originally a portion of its tracks in front of Alma, and at the site of the lock and dam, was constructed on trestles, which was subsequently filled in with sand, gravel, earth, or other suitable substance, under claimed authority of an ordinance of the village of Alma, dated February 3, 1902. Upstream from the dam the railroad was constructed along bluffs for a distance of one and one-half miles, from which point, prior to 1928, it followed a winding course for several miles along the easterly bank of Beef Slough, continuing northwesterly and inland through the village of Nelson, Wisconsin, across the Chippewa River bottoms, over the main channel of the Chippewa at a point about one and one-half miles from the Mississippi, and then along the easterly shore of Lake Pepin. The railroad crosses Rush River at a point about one and one-half miles from the Mississippi. Rush River is located seventeen miles northwesterly from the Chippewa and twenty-eight miles from the Alma dam. Prior to 1928 the railroad crossed Beef River just above the point where it entered the channel of Beef Slough, which is about one and one-half miles upstream from the dam.
In 1927 appellee obtained a permit from the Secretary of War, revocable at the will of the latter, authorizing it to dredge Beef Slough at points near Alma to a depth not exceeding thirty feet nor within one hundred feet of any wing dam or main bank, and to use the dredged material for railroad embankment in accordance with plans shown on the drawings attached thereto, subject, however, to the conditions set foith in the permit forbidding impairment of navigable capacity, providing for the protection or removal of structures when future operations of the Government might require, without cost to the Government, and prohibiting unreasonable interference with navigation. The maps attached to the permit disclosed the work sought to be done and the manner in which it was to be accomplished. Pursuant to that permit appellee constructed an embankment across the abandoned channel of Beef Slough, diking or damming it in two places. It constructed a bridge, however, in the center of this embankment over a diversion ditch, through which the waters of Beef River were diverted at right angles to Beef Slough, and permitted to run into the Mississippi. In the state of nature, the waters of Beef River flowed into the channel of Beef Slough across which the embankment was constructed. That channel was perhaps three hundred feet in width, and in one place the water in Beef Slough was from ten to fourteen feet deep. The diversion ditch was sixty feet wide and five feet deep.
The primary question here presented first arose in cause No. 3683, when the court ordered the Government to make its petition more specific by filing plans of the proposed lock and dam, or sufficient information with respect thereto, to enable appellee to make proof of damage, if any, to the remainder of its property other than the 1.6 acres therein- sought to be condemned for the site of the lock and dam.
It is contended by the Government that it was entitled to appropriate the 1.6 acres, and in so doing it was not liable to appellee in that action for damages accruing by reason thereof to the remainder of appellee’s property. We do not understand this to be the law. In United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 163, 55 L.Ed. 165, 31 L.R.A.(N.S.) 1135, the Court said: “Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted.” That rule has been undeviatingly followed, both by prior and subsequent decisions, and it constituted ample authority to- warrant the court requiring appellant to make its complaint more specific by describing the intended use of the 1.6 acres. Before making the order the court was not required to pass upon the merits of appellee’s claims for they were not yet filed. Indeed, they could not be, until the information upon which they were based was presented by appellant as a result of the order.
At the trial the Government’s theory was developed more clearly, qnd appellee’s claims were presented with particularity. The latter extended over a territory twenty-eight miles in length immediately above the dam, and included damages at Beef Slough, the Chippewa river and valley and Rush River, which appellee claimed were proximately caused by the dam impounding the water.
In the meantime, after the commissioners had made their award in Cause No. 3683, which included damages to appellee’s property at Beef Slough, the Government filed its second suit, No. 3767, by which it sought to condemn a limited flowage easement at Beef Slough, alleging that it had already appropriated the land upon which the dam was to be- constructed. This, of course, included the 1.6 acres referred to in cause No. 3683. At this time there had been a change in the personnel of the District Court by virtue of the appointment of a new judge. The matter was referred to commissioners who reported damages in the second suit and from that report appellant also appealed to the District Court.
Both appeals being consolidated for trial, appellee proceeded on the theory, which the court adopted, that by virtue of the physical appropriation of the 1.6 acres, the Government impliedly agreed to compensate appellee for all proximate damages to its remaining property occasioned by the construction and use of the dam, and that recovery therefor was authorized by the Tucker Act, 28 U.S.C.A. § 41 (20); that unless appellee presented all of its claims for proximate damages to its remaining property at the time of the physical appropriation of the land it would be barred thereafter from recovering those omitted. Obviously appellee’s contentions in these respects are sound. True, appellee was’permitted subsequently to prove damages at Beef Slough which already had been proved, over the Government’s objection, in the first suit, but that was because of the Government’s voluntary act in bringing the second action, which seems to us to have been superfluous, and inconsistent with the rule in United States v. Grizzard, supra. If appellee had not asked that the complaint in the first action be made more specific, or if it had not presented its claim in that action for damages to its remaining property, but had merely gone to award on the value of its interest in the 1.6 acres of land, it might have been placed in a very embarrassing situation in its effort to recover damages to the remaining property on the theory of an implied contract, especially if the Government had chosen not to file any subsequent action for flowage easements, and certainly it was not necessary for it to do so. Moreover, if, under such circumstances, it subsequently filed the second suit for the flowage easement at Beef Slough, that of itself would hare furnished no basis for proving damages at the Chippewa or Rush river, for the injurious flow-age at Beef Slough was not the cause of the damage at the other places. The primary cause of the damage at each place was the construction and use of the dam on the land that was physically appropriated for that purpose, including the 1.6 acres. The Government contends, however, that as a result of the court’s theory it was compelled to accept and pay for more rights than it asked. This might be true, under a given state of facts, with respect to the second suit, and it furnishes an additional reason for the consolidation. The objection is not tenable as to the first action, because by its filing the Government impliedly agreed to pay for all damages to the remaining property, proximately caused by the use of that which it had physically appropriated. Hence it will be presumed to have demanded the right to cause the damage for which it was liable.
The character of appellant’s contention in this respect would seem to recognize the rule in the Grizzard Case, supra, and to manifest a legitimate purpose to place appellee, if it could, in the position to which we have just made reference. Hence, we think the court properly consolidated both cases for trial, thus not only avoiding any duplication of damages, and perhaps a multiplicity of suits, but securing to appellee an opportunity to have adjudicated all of its damages, if any, for which the Government was liable by reason of the physical appropriation of appellee’s land for its intended use.
True, there may have been instances of condemnation of land by the Government, where the taking constituted a sufficient basis for an implied promise on the part of the Government to compensate the owner for all proximate damages to his remaining land, and yet no damages were allowed. This was not because of any departure from the rule of measurement, but because the damage was uncertain, remote, speculative, or not proximately caused by the taking, or was caused by some intervening agency for which the Government was not liable. Likewise there have been cases where there was no physical appropriation, hence there was no implied promise, and the actions were based solely on tort for which the Government is never liable, and for which no citizen can sue. None of these cases is in conflict with the Grizzard Case. Illustrative of these cases is Christman v. United States, 74 F.(2d) 112, decided by this court. There an old dam in the Ohio River, at Louisville, was replaced by a new one eight feet higher tnan the old one. It was of modern type which permitted the wickets to be lowered, and they were always lowered in time of flood, • so that at those times the river had an unobstructed flow. Appellant owned a farm on a nonnavigablé tributary creek of the Ohio. The mouth of the creek was 54 miles up-stream from the dam, and the farm was 4 miles up the creek. There was no permanent filling of the creek channel as a result of the new dam. A part of Christman’s land was overflowed by the creek as a result of freshets from adjacent hills, and by backwater from the Ohio in times of flood. That had always been true and the dam had not affected the frequency, the extent or the duration of the overflows. The Government had not appropriated any part of the owner’s land by condemnation, or otherwise, and under those circumstances we sustained the finding of the District Court that there was no damage as a proximate result of the new dam for which the Government” was liable.
In United States v. Chicago, B. & Q. R. Co. (C.C.A.) 82 F. (2d) 131, 106 A.L.R. 942, the Government had condemned a certain floodway easement on and over a part of this appellee’s right of way and embankment near Hastings, Minnesota. It was made necessary by the construction of a dam in the Mississippi, as a part of the general navigable improvement plan of that river, out of which the subject matter of the instant case arose. The court there, in a clear and well-considered opinion, distinguishes the classes of cases to which we have referred, from the rule in the Grizzard Case, which it followed. It is sufficient to say, without further discussion, that we concur in the conclusions of the Eighth Circuit in that case in following the rule in the Grizzard Case.
It is contended by the Government that the verdict of the jury was based on damages which Were consequential, remote and speculative. We think it can not be denied that ail the damages covered by the verdict were indeed very real, and were quite conservatively estimated on substantial evidence. But, of course, if they were not proximately caused by the physical appropriation of the 1.6 acres, and the uses to which it was put, the verdict and judgment to that extent would be erroneous. Aside from the questions hereinafter discussed, however, we are convinced that all the damages covered by the verdict were proximate, and were not speculative, consequential or remote.
The record is quite voluminous and it would be impracticable to attempt to treat in detail the evidence affecting each item of damage. As this contention involves questions of fact we shall consider generally the evidence which we think substantially supports the verdict and judgment. The soil in this area is quite subject to erosion. The tributary rivers here involved carry enormous amounts of silt annually into the Mississippi which in turn, before the construction of the dam at Alma, carried it, or a greater portion thereof, down stream. The Chippewa, due to the declivity of its channel, has a very rapid flow, and hence deposits more silt in the Mississippi than any other stream in that area. It is illustrative, however, of what happened in a lesser degree with respect to all the streams. When the Mississippi was at normal low water mark it readily received the silt from the Chippewa, but at high water stage the waters of the Mississippi backed up into the mouth of the Chippewa, thus retarding the Chippewa’s flow and causing the silt to be deposited in its bed. When the waters subsided in the Mississippi, the current of the Chippewa again carried its silt, and much of that which had been deposited, into the Mississippi. It was said that the excessive deposits of silt from the Chippewa in years gone by had raised the bed of the Mississippi at this point, which resulted in the formation of Lake Pepin, just above it. The deposit of silt in the Chippewa, under circumstances as above stated, had caused the waters of the Chippewa to overflow its banks, thus causing distributaries, some temporary, and others oJ; a more or less permanent character. It was said, without denial, that Beef Slough had its origin, many years ago, as one of such dis-tributaries. It wended a devious course down the Chippewa Valley and entered the Mississippi at a point about nine miles below the mouth of the Chippewa. Fifty years ago Beef Slough was navigable, as was also the Chippewa, for quite a distance above its mouth. A few industries were located upon Beef Slough and used it as a means of transportation, the principal one being a logging company, which conducted an extensive business. The waters of Beef River likewise carried enormous amounts of silt, and on account of excessive deposits in its bed, it became less navigable throughout the years, and for that reason the logging company ceased business and moved its plant in 1889. The course of Beef Slough in numerous places has changed by the formation of distributaries, and many places which used to constitute the bed of the Slough have been covered with trees and vegetation for many years and are now used as pasture land. For many years there have been no industries located on it, and it has not been used for navigable purposes. Several years ago the Government constructed a dam and wing walls at or near the mouth of the Slough for the purpose of protecting and preserving the channel of the Mississippi against the ravages of the Slough, and they are referred to as a matter of special care to the Government in the permit issued to appellee by the Secretary of War, which has been hereinbefore referred to.
The damages awarded by the verdict were caused by the necessity of appellee raising and protecting its embankment, and raising and extending its bridges. They are especially referred to in interrogatories numbered 7 to 28, inclusive. The thirtieth merely asks for the total amount of the damages. Aside from the question of liability, it is obvious to us that the damages referred to in the 7th and 8th interrogatories were proximately caused by the dam. It would seem that this fact was conceded by the Government, except as to amount, by filing its second suit.
The other items of damage are based on the theory that the permanent raising of the water in the Mississippi above its natural flow will hold back the natural flow of its tributaries, causing the deposit of silt therein, thus raising the floors of the tributaries, which in turn will cause their overflow and the formation of distributaries, thereby flowing the water against appellee’s embankments, which in their present condition are not of sufficient height to withstand it, nor are their bridges of sufficient height and length to permit the water to pass. There is no doubt of the happening of this condition. It was not controverted. The only uncertainty involved related to the time when it would occur. The jury’s answers in this respect were based on substantial evidence from witnesses whose reputation and integrity were unquestioned and whose ability and knowledge were unassailed. We think the answers were fully justified, and that the damages awarded were the proximate result of the building of the dam; that there was no independent intervening” cause; and that the damages were neither remote, consequential nor speculative.
The public easement of navigation is limited to the natural levels, widths and flows of navigable streams, and riparian owners have a right to erect and maintain their properties in reliance upon those limitations. True, the burden of the natural servitude may be increased by the Government, but not without just compensation. United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L. Ed. 539; United States v. Chicago, B. & Q. R. Co., supra; United States v. Wheeler township (C.C.A.) 66 F.(2d) 977. Appellee’s properties were constructed in reliance upon the natural level, width and flow of the Mississippi in this area. True, it was subjected to attendant inconveniences and perhaps- damage by floods and temporary high waters, but appellee’s properties were constructed with that in view. The line of ordinary high water divides the upland from the river bed. The river bed is the land upon which the action of the water has been so constant as to destroy vegetation. It does not extend to nor include the soil upon which grasses, shrubs and trees grow. Harrison v. Fite (C.C.A.) 148 F. 781. Beyond that point the Government can not go without compensation for proximate damages.
It is contended by the Government that the impounded water does not, and will not, extend beyond the ordinary high water line. The' location of this line was disputed. The answer to interrogatory No. 6, submitted at the request of appellant, settles that dispute so far as this court is concerned, for it is supported by substantial evidence. A preponderance of the evidence supports appellee’s contention that the impounded water will extend above the ordinary high 'water mark as established by the jury, especially if the water is maintained at a mean'sea level of 667 feet at the dam, as provided by the plans and as now constructed. The Government attempts to parry this fact by the statement that, although the construction is sufficient to create such a mean sea level at the dam, the Government intends to maintain at that point only such water level as will maintain a mean sea level of 667 feet throughout the pool. It accordingly asked, at the conclusion of the evidence, for a nunc pro tunc order permitting it to amend its complaint by substituting the words “throughout the pool area” for the words “at the dam,” in the following averment: “The dam shall have a' crest elevation of 667 mean sea level intended to provide a pool no higher than 667 at the dam.” This request was denied by the court and we think rightly so. The dam was constructed, the right of use to its full capacity was fixed, and appellee’s damages could not then be limited by an averment that the Government did not intend to exercise its full right. Moreover, an elevation of 667 throughout the pool would include that portion of the pool next to the dam, and no matter what the elevation be at the dam it is bound to be higher further up stream. It can not be the same at one time throughout the pool. Under these circumstances the railroad’s compensation must be based upon the maximum use of the right acquired, rather than.upon its maximum intended use. Western Union Telegraph Company v. Polhemus (C.C.A.) 178 F. 904, 29 L.R.A.(N.S.) 465.
It is further contended by the Government-that the Chippewa and Beef rivers and Beef Slough are navigable waters of the United States, and that Beef River and Beef Lake are navigable waters of Wisconsin, hence the Government may, in the improvement of navigation, permanently raise the water level to the line of ordinary high water without liability. The answers to interrogatories numbered 1, 2, 3, 4 and 5 are determinative of this contention of navigability adversely to appellant. The answers are supported by substantial evidence which is quite convincing. See Harrison v. Fite (C.C.A.) 148 F. 781. By submitting these interrogatories appellant must have assumed, as we do, that they involved mere questions of fact. The answers thereto being supported by an abundance of substantial evidence we can not disturb them.
It is also contended by the Government that appellee’s property at certain places is constructed within the bed of the Mississippi. This contention refers more particularly to the 1.6 acres, and the embankment and tracks across Beef Slough. The answers to the interrogatories are utterly inconsistent with this contention. A perusal of the record convinces us that the contention is not sound, and the filing of tlie two condemnatory actions, wherein the Government impliedly agreed to pay damages therefor, gives us further assurance that our conclusion in this respect is correct. Appellant, however, regards the permit of the Secretary of War, and the application therefor, as an admission on the part of appellee that the Slough was a part of the Mississippi and was navigable. The facts of this record, however, disclose that the Slough was never a part of the Mississippi, except as a tributary, and that neither the Government nor the State of Wisconsin has regarded it as navigable for almost fifty years, except for the Government’s claim in the belated hours of these actions. The acts of appellee with respect to the permit may well be considered as merely precautionary, and they raise no inference against it. It is also noted that the land office surveyors had meandered the Slough and perhaps all other waters here involved, but that fact raises no inference as to their navigability because the land office had no authority to determine that fact. Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; United States v. Ladley (D.C.) 4 F.Supp. 580.
Eight years after appellee had constructed its embankment across Beef Slough, and almost two years after the trial of these cases, the Secretary of War revoked the permit. This was of no avail to the Government’s right to prevail in these actions, first, because the waters of Beef Slough are not navigable; second, because the dredging had already been accomplished, and before it could be removed under the terms of the permit, if at all, it must have appeared that future operations by the United States required an alteration in the position of appellee’s authorized structures, or in the opinion of the Secretary of War, it would cause unreasonable obstruction to the free navigation. None of these facts were found by the Secretary of War, and there was no hearing upon them. We think Miami Beach Jockey Club v. Dern, 65 App.D.C. 369, 83 F.(2d) 715, upon which the Government relies, is not in point. In that case there was a hearing before any work had been done, and the waters involved were navigable.
It is further contended by the Government that appellee failed to establish any interest in the 1.6 acres condemned in Cause No. 3683. The action was required to be prosecuted in accordance with the laws of Wisconsin. See 33 U.S.C.A. § 591. It is the law of that state that where proceedings are instituted to condemn property, and the petition recites, as it must, title and ownership or interest by the defendant, the condemnor is thereby bound by such expressed recognition of title, and cannot be heard to assert the contrary nor compel one recognized as owner to prove or defend his title. Murray Hill Land Co. v. Milwaukee L., H. & T. Co., 126 Wis. 14, 104 N.W. 1003; Skalicky v. Friendship Electric Light & Power Co., 193 Wis. 395, 214 N.W. 388. The complaint in No. 3683 did not directly allege ownership in appellee, but rather a claim of ownership, and we are inclined to think that was sufficient under section 32.04, Wisconsin Statutes (1929). During the trial the Government never made any claim that it owned any part of this land, but tacitly acquiesced in appellee’s claim of ownership, and by instituting the action impliedly promised to pay for its value. Some of the purported title papers introduced without objection perhaps did not constitute the best evidence, such as uncertified copies and the like, but under the issues presented, appellee was not required to prove a merchantable title. See Tenney Telephone Co. v. United States (C.C.A.) 82 F.(2d) 788. There was no adverse claim presented to appellee’s claim, and there was testimony given that the 1.6 acres was'a part of appellee’s right of way through Alma, which it had owned and used as a right of way since 1884. This we think was sufficient to establish appellee’s claim of title.
The Government further contends that admittedly the By Golly Creek bridge was erroneously constructed too low to meet conditions as they were before the dam was built, and that is true. But appellee at the trial expressed its willingness to pay for curing that error, and its correction by appellee was contemplated by interrogatory 12, submitted by appellant. The answer is responsive thereto in view of the evidence with respect to the entire cost of the new bridge as it should now be. In other words, the evidence discloses that appellee will be required to pay considerably more for the new bridge at that point than the amount of the award in answer to interrogatory No. 12.
Many other contentions were made by the Government, including divers objections to the court’s rulings with respect to the admission of evidence. 'All these we have examined where there were proper objections made and proper exceptions saved, and we find no reversible error.
The Government also contends that the court erred in giving and refusing to give certain instructions. We are convinced that those refused were properly denied, and that those given, considered as a whole, constituted as fair a presentation of. the law on the issues involved as the Government was entitled to.
The Government further contends that the court erred in not requiring the jury to return a separate verdict in each case. There is no merit in this contention. At the close of the evidence the Government filed its written motion for a special verdict and tendered therewith 37 interrogatories for the jury to answer. The motion was entitled United States * * * vs. Certain land in Buffalo County, Wisconsin, containing 1760 acres; * * * et al., No. 3683 Law, No. 3767 Law. Of the interrogatories submitted to the jury those numbered 1 to 28 inclusive, were identically, or substantially, the same as twenty-eight of those requested by the Government. Those submitted to the jury, numbered 29 and 30, were not included in the Government’s request. The answer to interrogatory 29 is a complete answer to the question raised by the issues in the first action according to appellant’s contention. That, plus the answer to interrogatory 30, is completely responsive to the issues raised in the first action according to appellee’s theory, and it includes the issues attempted to be
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_adminaction_is
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES v. N. Y. RAYON IMPORTING CO., INC. (#2) et al.
NO. 94.
Argued January 8, 1947.
Decided February 3, 1947.
Samuel D. Slade argued the cause for the United States. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Stanley M. Silverberg and Paul A. Sweeney.
Joseph M. Proskauer argued the cause for the N. Y. Rayon Importing Co. et al. With him on the brief were Eugene Eisenmann and Albert L. Solodar.
Opinion of the Court by
Mr. Justice Murphy, announced by Mr. Justice Rutledge.
This case involves another impact of § 177 (a) of the Judicial Code on the power of the Court of Claims to award interest in a judgment against the United States.
The N. Y. Rayon Importing Co., Inc., (Rayon #1) and the Nyrayco Importing & Converting Corporation (Ny-rayco) were engaged in the importation of rayon yarn. Between 1925 and 1929 they paid customs duties on such importations which they claimed were erroneous. Prior to March 1, 1930, they filed protests with the Collector of Customs in accordance with applicable Tariff Act provisions, which resulted in the institution of actions in the United States Customs Court.
On March 1,1930, the N. Y. Rayon Importing Co., Inc., (Rayon #2) was incorporated for the purpose of acquiring all the assets and assuming all the liabilities of Rayon #1, Nyrayco and two other corporations in the rayon business. As a part of this reorganization, Rayon #1 was dissolved as of March 1, 1930, the New York Secretary of State issuing a certificate of dissolution on that date.
Rayon #2 was voluntarily dissolved on January 9,1931, in accordance with New York law. Nyrayco was dissolved on December 16, 1935, by proclamation for nonpayment of New York franchise taxes.
In 1937, long after these three corporations were dissolved, the Customs Court rendered decisions sustaining the protests which Rayon #1 and Nyrayco had filed in connection with the duties on rayon yarn imported between 1925 and 1929. A reliquidation of the customs entries was directed. On reliquidation, the Collector of Customs ascertained that a refund of $362,482.71 was payable to Rayon #1 and $30,809.75 to Nyrayco. Checks payable to those corporations were drawn, but since the corporations had been dissolved the Collector caused the checks to be transmitted to the General Accounting Office “for lawful disposition.” Representatives of Rayon #2 thereafter requested the General Accounting Office to deliver these checks to them; this request was denied and the Comptroller General deposited the proceeds of the checks in the Treasury in a trust fund entitled “Outstanding Liabilities 1938,” pursuant to law.
Several unsuccessful attempts were made by the representatives of the three dissolved corporations to obtain the money in the trust fund. First, a consent decree was entered in a declaratory judgment proceeding in the Supreme Court of the State of New York adjudicating that, as among the three dissolved corporations, Rayon #2 was the owner of these customs refunds or the proceeds thereof. But the General Accounting Office refused to make payment when confronted with this decree. Thereafter, on February 26, 1943, attorneys for the three dissolved corporations suggested to the Comptroller General that the money be released to Rayon #1 and Nyrayco with the consent of Rayon #2, each corporation being represented by its director or directors as trustees in liquidation. The Comptroller General rejected this proposal and stated that payment would be permitted only upon final judgment by a court of competent jurisdiction concluding the issue of ownership. He suggested that a suit be brought for this purpose in the Court of Claims.
Rayon #2 and its liquidating directors and trustees then brought this suit in the Court of Claims, claiming that Rayon #2 continued to exist for the purpose of collecting and distributing its assets and that it was the owner of the funds in issue. Rayon #1 and Nyrayco also brought suits in the Court of Claims; they claimed the amounts of their respective refunds and alleged that ownership remained in them. After consideration of all three claims, the court held that the rights of Rayon #1 and Nyrayco had been taken over by Rayon #2 and its liquidating directors and trustees, who were thus entitled to recover the amounts held in trust by the United States. 64 F. Supp. 684. As a part of its judgment, however, the Court of Claims awarded' 6% interest on the total fund, such interest to run from April 19, 1941, the date of an amendment to the New York Tax Law which retroactively clarified the capacity to sue of involuntarily dissolved corporations.
We issued a writ of certiorari in No. 94, on petition of the United States, to review the action of the Court of Claims in awarding such interest. At the same time, we issued a writ of certiorari in No. 96 on a cross-petition of Rayon #2 and its liquidating directors and trustees urging that interest should have been allowed from the time of the issuance of the refund checks in 1937 and 1938 rather than from April 19,1941.
In our opinion, § 177 (a) of the Judicial Code prohibits the award of any interest under the circumstances of this case. Section 177 (a) provides that “No interest shall be allowed on any claim up to the time of the rendition of judgment by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest, . . As we recently pointed out in United States v. Thayer-West Point Hotel Co., 329 U. S. 585, this provision codifies the traditional rule regarding the immunity of the United States from liability for interest on unpaid accounts or claims. In other words, in the absence of constitutional requirements, interest can be recovered against the United States only if express consent to such a recovery has been given by Congress. And Congress has indicated in § 177 (a) that its consent can take only two forms: (1) a specific provision for the payment of interest in a statute; (2) an express stipulation for the payment of interest in a contract duly entered into by agents of the United States. Thus there can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed. Tillson v. United States, 100 U. S. 43; United States v. Thayer-West Point Hotel Co., supra.
Tested by those standards, the award of interest in this case cannot be sustained. There is obviously no contractual stipulation involved. And the appropriation statutes which cover the refunds here in issue contain no provision whatever for the recovery of interest. Act of May 14, 1937, 50 Stat. 137,142; Act of June 25,1938,52 Stat. 1114, 1149. The traditional immunity of the United States, as codified in § 177 (a), accordingly applies.
The Court of Claims, without making a reference to §177 (a), sought to justify its award of interest on what it thought “would be right or just.” It felt that the officials of the General Accounting Office had delayed too long in determining the ownership of the refund claims and that, at the very least, they could have suggested at an earlier date that a suit in the Court of Claims was necessary. Inasmuch as it was known since the time of the Customs Court’s decisions in 1937 that the money did not belong to the Government, the Court of Claims believed that it was only fair that the true owners get interest from the time when all defects and uncertainties were removed in New York as to the capacity of dissolved corporations to maintain suits or to be sued.
But assuming that the equities of the situation all favor the owners of the refund claims, the Court of Claims did not thereby acquire power to carve out an implied exception to the plain words of § 177 (a). Had Congress desired to permit the recovery of interest in situations where the Court of Claims felt it just or equitable, it could have so provided. The absence of such a provision is conclusive evidence that the court lacks any power of that nature. Indeed, any other conclusion would permit the Court of Claims to supply the consent which only Congress can give to the imposition of interest against the United States.
By the same token, if we assume that the officials of the General Accounting Office unreasonably delayed the determination of ownership of the funds, such action or inaction could not operate as a consent on the part of the United States. Tillson v. United States, supra. It has long been settled that officers of the United States possess no power through their actions to waive an immunity of the United States or to confer jurisdiction on a court in the absence of some express provision by Congress. Carr v. United States, 98 U. S. 433; Stanley v. Schwalby, 162 U. S. 255; Minnesota v. United States, 305 U. S. 382; United States v. Shaw, 309 U. S. 495. The same rule applies here. Only Congress can take the necessary steps to waive the immunity of the United States from liability for interest on unpaid claims. Cf. Smyth v. United States, 302 U. S. 329, 353.
The owners of the refund claims, however, seek to avoid the effect of § 177 (a) by urging that it applies only to original claims which have not previously been reduced to judgment. This proceeding, it is said, is based upon the pre-existing judgments of the Customs Court, thereby precluding the application of § 177 (a). We do not pause here to inquire into the nature and effect of the decisions rendered by the Customs Court or the jurisdiction of the Court of Claims to entertain suits based upon pre-existing judgments. It is enough to note that the traditional rule embodied in § 177 (a) is a complete one covering all types of claims, including those arising out of pre-existing judgments. As we have seen, any exception to that rule must be grounded upon an express provision in a statute or contract. It follows that any exception relating to preexisting judgments must be traced to specific language in a contract or some other statute. Section 177 (a) by itself warrants no such exception. Cf. 31 U. S. C. § 226.
In this connection, the owners of the refund claims point to the Act of March 3, 1875, as amended in 1933. That Act directs the Comptroller General to withhold payment from a judgment creditor of the United States, if such creditor is indebted in turn to the United States, until the indebtedness is satisfied. The Comptroller General is to cause suit to be brought on the Government’s cross debt if the judgment creditor denies- the indebtedness. The Act then expressly permits 6% interest to be paid to the judgment creditor for the period of the withholding if the Government fails to win its suit and to substantiate its asserted set-off. Thus to that limited extent the Act of March 3, 1875, marks an exception to the traditional rule set forth in § 177 (a). See, for example, American Potash Co. v. United States, 80 Ct. Cl. 160, 8 F. Supp. 717; Stewart & Co. v. United States, 71 Ct. Cl. 126.
But the inapplicability of that Act to the facts of this case is at once apparent. The Act relates solely to the situation where the Government asserts a set-off against a judgment creditor. No such set-off is here asserted; there is nothing more than a withholding of payment by the Government until an ascertainment of ownership. In fact, there is no real claim that the situation in the instant case can be fitted within the terms of the Act of March 3, 1875. There is merely an argument that the policy of that Act in providing for the payment of interest where the withholding results from an erroneous belief in the existence of a cross-indebtedness applies with equal force where the withholding results from an attempt to determine ownership of a claim. But the immunity of the United States from liability for interest is not to be waived by policy arguments of this nature. Courts lack the power to award interest against the United States on the basis of what they think is or is not sound policy. We reiterate that only express language in a statute or contract can justify the imposition of such interest. Such language is absent in this instance.
We accordingly reverse the judgment of the Court of Claims in No. 94 to the extent that it includes an award of interest. And since it becomes unnecessary to consider the merits of the cross-claims, the writ of certiorari previously issued in No. 96 is dismissed.
So ordered.
U.S. C. §284 (a).
Section 21 of the Act of June 26, 1934, c. 756, 48 Stat. 1235, 31 U. S. C. § 725t.
This non-adversary proceeding only affected rights as between Rayon #1 and Nyrayco, on the one hand, and Rayon #2 on the other. It provided the Government no protection as against the other possible claimants who were later impleaded and cited in the Court of Claims action. See footnote 4.
The three suits were consolidated. In all three cases, the Societé Pour Nouveaux Placements de Capitaux was impleaded as plaintiff. It filed a disclaimer of interest and the Court of Claims dismissed “all claims of interest” which it had. Several other persons and companies were named by the United States as having possible claims, but none of them asserted any claims or filed any intervening petitions; the court dismissed “all claims of interest” as to them.
April 19, 1941, was the date when the Governor of New York approved an amendment to § 203a of the New York Tax Law, removing all possible question whether corporations which had previously and involuntarily been dissolved under the New York Tax Law for non-payment of franchise taxes had the right to maintain suits. This had relevance, however, only to Nyrayco. Rayon #1 and Rayon #2 were voluntarily dissolved in accordance with § 105 of the New York Stock Corporation Law. Their right to maintain suit to collect their assets was never questioned.
Rayon #2 and its liquidating directors and trustees claim that the date of April 19, 1941, has no relevance whatever to the claim of Rayon #1. See footnote 5. And they claim that this date has no proper relation to the Nyrayco claim since the Government made no objection to Nyrayco’s capacity to sue until several years after the decisions of the Customs Court and after checks in its name had been drawn by the Government.
Act of March 3, 1875, 18 Stat. 481, as amended by the Act of March 3, 1933, c. 212, Title II, § 13, 47 Stat. 1516, 31 U. S. C. § 227. This provides:
“When any final judgment recovered against the United States duly allowed by legal authority shall be presented to the Comptroller General of the United States for payment, and the plaintiff therein shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the Comptroller General of the United States to withhold payment of an amount of such judgment equal to the debt thus due to the United States; and if such plaintiff assents to such set-off, and discharges his judgment or an amount thereof equal to said debt, the Comptroller General of the United States shall execute a discharge of the debt due from the plaintiff to the United States. But if such plaintiff denies his indebtedness to the United States, or refuses to consent to the set-off, then the Comptroller General of the United States shall withhold payment of such further amount of such judgment, as in his opinion will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to final judgment. And if such debt is not already in suit, it shall be the duty of the Comptroller General of the United States to cause legal proceedings to be immediately commenced to enforce the same, and to cause the same to be prosecuted to final judgment with all reasonable dispatch. And if in such action judgment shall be rendered against the United States, or the amount recovered for debt and costs shall be less than the amount so withheld as before provided, the balance shall then be paid over to such plaintiff by such Comptroller General of the United States with 6 per centum interest thereon for the time it has been withheld from the plaintiff.”
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_casetyp1_7-3-3
|
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 - commercial disputes".
Ruth D. CORLEY et al., Appellants v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, a corporation, Appellee.
No. 16270.
United States Court of Appeals District of Columbia Circuit.
Submitted Oct. 11, 1961.
Decided Nov. 2, 1961.
Mr. Charles A. Iovino, Jr., Washington, D. C., submitted on the brief for appellants.
Mr. Richard W. Galiher, Washington, D. C., with whom Mr. William E. Stewart, Jr., Washington, D. C., was on the brief, submitted on the brief for appellee.
Before Wilbur K. Miller, Chief Judge, and WASHINGTON and BURGER, Circuit Judges.
..... ,, , ,TT _ „„ „ T 1 WILBUR K. MILLER, Chief Judge.
Ruth Corley and her husband sued John E. Lockhart and Life and Casualty Insurance Company, his employer, to recover for personal injuries and property damage sustained when Lockhart’s automobile collided with the Corley car on Friday, March 15, 1957, at the intersection of 7th and L Streets, S. E., in the District of Columbia.
On the theory that Lockhart was not acting within the scope of his employment, the company moved for summary judgment. After considering depositions and affidavits, the trial court made findings of fact that at the time of the accident Lockhart was operating his own automobile, was not then in the employ of the insurance company, and therefore was fot gating the automobile as its agent, servant or employee, but was on his own personal business. Accordingly, summary judgment was granted to the insurance company and this appeal foll°we^-
The action against Lockhart, who has been adjudicated a bankrupt, is not involved here. The sole question is, was a genuine issue of material fact raised as to whether Lockhart was acting within the scope of his employment when the accident happened ?
It appears from the depositions and affidavits that, at the time of the aecident, Lockhart was an insurance salesman employed by the company at a salary of $35.00 per week plus commissions, with an allowance of $3.50 per week toward the expense of operating his own car in covering the territory in which he collected premiums. The scene of the. accident was not within the area assigned to him. .It appeared that he usually devoted only four days a week to company business, and ordinarily did not choose to work on Friday. His affidavit stated he was not engaged in any activity on behalf of the-company on the Friday when the accident occurred, but had visited his mother-in-law’s home and was on the way from there to see his brother-in-law at a gas station where the latter was employed, with the intention of buying tires for his car. His deposition was to the same effect. An affidavit of the company manager stated the accident happened outside Lockhart’s “debit area,” that is, his assigned territory, and “upon information and belief” concluded Lockhart was 'not acting within the scope of. his employment at the time of the collision.
The affidavit of an attorney for the Corleys said he was present at a hearing ■in the Corporation Counsel’s office when Lockhart made certain statements in connection with his activities on the date of the accident, March 15, 1957, and heard Lockhart say
“ * * * that just prior to the accident he had delivered an insurance policy and he was going to acquire new tires for his car at which time he expected to make a sale of an insurance policy to a person at the service station where he intended to buy the tires, and that when he had finished with this he had another prospect to call upon.”
The affidavit which recited these alleged admissions was enough to raise a genuine issue of material fact as to whether he was acting within the scope of his employment, if it “set forth such facts as would be admissible in evidence,” as required by Rule 56(e), Federal Rules of Civil Procedure, 28 U.S. C.A. We think the rule does not require an unequivocal ruling that the evidence suggested in this particular affidavit would be admissible at the trial as a condition precedent to holding the affidavit raises a genuine issue. In many cases, it is possible to say without qualification that evidence recited in an affidavit under Rule 56(e) would or would not be admissible; but it is not so here. Admissibility of testimony sometimes depends upon the form in which it is offered, the background which is laid for it, and perhaps-on other factors as well.
It is therefore possible, and perhaps probable, that Lockhart’s alleged admissions out of court will be admissible. In the particular circumstances here involved, this is sufficient to defeat the motion for summary judgment, because courts are inclined to hold the movant to a strict demonstration that no genuine issue exists.
It is argued for the company that Lockhart’s statements at the Corporation Counsel’s office were not a part of the res gestae, and were therefore clearly inadmissible. That the statements were not a part of the res gestae is not conclusive. At a trial, the District Court must resolve the question of admissibility, not only on the basis of the form in which the testimony is offered and the background which is shown, but also in the light of our prior decisions, such as the Murphy Auto Parts case ***and Koninklijke Luchtvaart Maatschappij, etc. v. Tuller.
It is also argued by appellee that Lock-hart’s admissions constituted “the alleged statement .of a claimed agent standing alone, offered for the purpose of proving agency,” and so were inadmissible under the principle that agency cannot be proved by the declarations of the person whose agency is sought to be established.
The fact that Lockhart was an agent of the company was otherwise amply established and indeed admitted; so, testimony concerning his statements before the Corporation Counsel would not be offered to establish agency, but rather to show that at the time in question he was acting for his principal, within the scope of his employment. The question whether he was or was not so acting is quite different from the question whether agency existed at all.
In our view, a genuine issue of material fact as to whether Lockhart was acting within the scope of his employment was raised by the affidavit which set forth his alleged statements at the Corporation Counsel’s office. For that reason summary judgment should not have been granted to the insurance company.
Reversed and remanded.
. Murphy Auto Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508 (1957), cert. denied 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415 (1958).
. 110 U.S.App.D.C. 282, 292 F.2d 775 (1961).
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_usc2
|
50
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 50. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Appellant, v. Thomas Michael GOLON, Defendant-Appellee.
No. 74-1299.
United States Court of Appeals, First Circuit.
Argued Dec. 4, 1974.
Decided Jan. 28, 1975.
Certiorari Denied May 27, 1975.
See 95 S.Ct. 1999.
Robert B. Codings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., and Benjamin Jones, Asst. U. S. Atty., were on brief, for appellant.
Norman S. Zalkind, Boston, Mass., with whom Eric D. Blumenson and Zalkind & Zalkind, Boston, Mass., were on brief, for defendant-appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
The facts of this case as found by the district court, United States v. Golon, 378 F.Supp. 516 (D.Mass.1974), are undisputed. Appellee Thomas Michael Golon was classified as a conscientious objector by his draft board in 1970, and was ordered to perform 24 months of alternate service in civilian work contributing to the national health, safety or interest. Appellee began work in late 1970 at the Metropolitan State Hospital in Waltham, Massachusetts, but continued his employment there only until April 4, 1971. The State Selective Service Headquarters wrote appellee on April 19 concerning this unauthorized termination of his employment, and appellee responded with a request for reassignment. The state headquarters sent two additional létters inquiring about appellee’s prospective civilian employment, but received no response to these. In July, 1971, appellee started a non-profit food store, relying, according to his testimony, on conversations with a Selective Service official and others which indicated that it might be possible to fulfill his service obligation in this way.
On August 23, 1972, the State Selective Service Board assigned appellee to work at Massachusetts General Hospital to complete his obligation, but he did not report. The State Selective Service Headquarters was notified on October 5 of the failure to report, and informed the United States Attorney of the alleged violation the next day. After having the FBI interview appellee, the U.S. Attorney’s office requested copies of relevant Selective Service documents on July 21, 1973. These documents were received in October, reviewed by an Assistant U. S. Attorney on December 10, and an indictment was obtained December 19 for failure to perform the alternate service. 50 U.S.C. Appendix §§ 456(j), 462. Appellee was arraigned on January 7, 1974, and pleaded not guilty. After a hearing, the district court dismissed the indictment on July 30 on the ground that the government’s prosecution of the case had not been conducted as expeditiously as mandated by 50 U.S.C. Appendix § 462(c) and that appellee had been prejudiced thereby.
Section 462(c), which was enacted as part of the Military Selective Service Act of 1967, provides:
“The Department of Justice shall proceed as expeditiously as possible with a prosecution under this section, or with an appeal, upon the request of the Director of Selective Service System or shall advise the House of Representatives and the Senate in writing the reasons for its failure to do so.”
The determination whether the “expeditiously as possible” requirement of the statute was brought into play in this case by a sufficient “request” by the Director of Selective Service requires reference to the letter sent to the U.S. Attorney by the State Selective Service Headquarters on October 6, 1972. Since appellee has pointed to no other letter or communication from Selective Service making the request required by § 462(c), this letter must be viewed as constituting whatever request was made. The letter was one reporting appellee for prosecution as a violator:
“This headquarters, having carefully reviewed the entire file folder of the subject registrant and finding no procedural errors, and having processed him under the provisions of section 1660.9 of the regulations herewith reports the subject for prosecution under Section 12 of the Military Selective Service Act for violation of the provisions of section 6(j) of that act . ..”
Appellee argues that this was the request for expeditious prosecution contemplated by the statute, while the government contends that a more specific invocation of § 462(c) by a special request from the Director is necessary to bring it into operation. Before proceeding to the merits of this issue, we shall deal with two preliminary points raised by appellee.
It is argued, first of all, that by failing to present to the district court the argument that there was no “request” the government has foreclosed that line of attack here. Incontestably, it would have been better and more fair to the district court to have enabled it to pass upon the issue directly, and sound policies often dictate that we refuse to consider issues raised in the first instance on appeal. Here, however, we think it inappropriate to halt at the threshold. In briefing the Motion to Dismiss below, neither party focused on the § 462(c) argument among the multiplicity of issues mentioned in the motion. The district court first denied the motion, United States v. Golon, 378 F.Supp. 513 (D.Mass.1974); this was done without discussion of the specific issues raised by appellee with regard to delay (due process, Sixth Amendment speedy trial, § 462(c)). After this initial disposition, the district court held a hearing on the matter, and dismissal was granted. The issue relating to the nature of the request required by § 462(c) was not discussed either in memoranda or at the hearing, which was limited to appellee’s testimony as to his conduct. We would be inclined to view this somewhat disorganized presentation of the issues to the district court as sufficient in itself to justify our consideration of the “request” issue. In addition, there are more salient factors which also support that re-suit. The issue is one which is presented on the face of the statute, which specifically requires a request. And we are loath to pass over a question, squarely before us, which is almost certain to be presented in identical terms in other cases.
Appellee contends, secondly, that the district court’s determination that § 462(c) was applicable is one of fact which cannot be overturned unless clearly erroneous, likening it to a finding of consent. We disagree. The issue is strictly a legal one, posing the question whether § 462(e) comes into play in every case where a state board reports a registrant for prosecution or is triggered only by a specific request from the national Director of Selective Service.
The parties put forward radically different conceptions of the “request” referred to in § 462(c). Appellee contends that Congress intended that the prosecution of all draft cases be speeded up, and that in reporting an alleged violator for prosecution the Selective Service System fulfills the requirements of the statute. This position draws support from statements such as that by the House Armed Services Committee that enactment of the provision would “create a sense of urgency in the Department of Justice in respect to violations of the Selective Service Act.” House Report No. 267, 90th Cong., 1st Sess., 1967 U.S.Code Cong. & Admin.News at p. 1333. The section was described in the House Report as a response to “the apparent failure of the Attorney General to prosecute many alleged violations of the Selective Service Act despite the requests of the Director of Selective Service.” Id. The government agrees, as it must, that Congress sought to give the Director greater control over the prosecution of alleged draft violators, but it argues that an across-the-board command that all alleged violators be speedily prosecuted was not the mechanism chosen. It argues that Congress was aware that all draft cases are referred to the Justice Department by the Selective Service System, and that therefore an interpretation which labels the initial referral a § 462(c) request has the effect of rendering the request requirement surplusage. All the provisions of the statute may be given effect, it is argued, if the section is interpreted as creating a two-stage procedure. After the referral or report, the U.S. Attorney investigates and decides whether to seek an indictment. If the Director of Selective Service is displeased with the handling of a particular matter, he may make a specific request for expeditious prosecution and thereby bring the section into play. The legislative history which most strongly supports this interpretation is found in the House Committee’s section-by-section analysis of the bill:
“The provisions . . . would require the Department of Justice to institute as expeditiously as possible prosecution and judicial proceedings of violations of the Draft Act in instances in which a specific request for such action has been made by the Director of Selective Service or in the absence of such prosecution by- the Attorney General, a complete report in writing to the House of Representatives and the Senate.” House Report No. 267, U.S.Code Cong. & Admin.News, 1967, at p. 1349. [Emphasis supplied.]
After carefully considering the language of § 462(c) and the policies underlying it as reflected in the legislative history of the 1967 Act, we have concluded that the section must be read to require a specific request beyond the standard referral for prosecution. Congress was well aware of the role of the Selective Service System as the originat- or of draft-violation investigations by U.S. Attorneys, and thus would have realized that considering the original violation report a “request” would have the effect of bringing all draft cases within § 462(c). Although foggy in some respects, the language of the section, the reports, and the commentary in the Senate and House make such prominent reference to the “request” requirement that the argument that § 462(c) applies to all alleged violations is seriously undermined.
There is no question but that Congress felt that draft cases should in general be more vigorously pursued. It took two steps to accomplish this purpose. Section 462(a) had given priority to prosecution of draft cases on court dockets where requested by the Attorney General. By deleting the prerequisite of such a request, Congress elevated all draft cases, after indictment, to a position of priority. And in § 462(c), it gave added authority to the Director to call for prosecution where he might feel there was untoward reluctance to seek indictment by the Justice Department. But there is no substantial support for the conclusion that Congress intended to strip away entirely the prosecutorial discretion reposed in the Justice Department and insist that an indictment be sought in every referred case, no matter what the result of the investigation of the case. It is true that even under § 462(c) final authority rests with the Justice Department, which may choose to report to Congress on its reasons for not prosecuting if that is its decision. But this fact is but another indication that the section is a remedy which must be specially invoked by the Director of Selective Service. In 1971, the U.S. Attorney for Massachusetts presented 84 referred cases to a grand jury, and declined prosecution on 220; in 1972, 99 were presented and 189 declined; and in 1973, 80 were presented and 236 declined. We cannot accept the suggestion that Congress anticipated or intended that a full report be made to the Senate and House of Representatives in each of the “declined” cases. Not only would such an interpretation indicate a massive and sustained violation of § 462(c) by the U.S. Attorney, but the apparent failure of Congress to respond to this flagrant nonfiling of explanatory letters would be inexplicable.
As our discussion above indicates, we believe that Congress intended to enhance the influence of the Director of Selective Service in prosecution matters by giving him the power to spotlight individual cases of possible Justice Department abuse, not by requiring the Department to prosecute all cases referred or explain its failure to do so. In addition to the House Report, cited above, and the Conference Report, 1967 U.S.Code Cong. & Admin.News at p. 1361, the amendment of § 462(a) in the 1967 Act defeats any suggestion that the imposition of the “request” requirement was inadvertent or viewed as inconsequential. Before 1967, as noted above, subsection (a) directed that courts advance draft cases for immediate hearing upon the request of the Attorney General. The 1967 amendment eliminated the requirement of a request and provided for the advancement of all selective service cases. The considered elimination of a request requirement from subsection (a) of § 462 is not easily reconciled with an interpretation of subsection (c) which has the effect of making meaningless another request provision inserted at the same session.
We have carefully examined the two published cases of which we are aware which shed any light on § 462(c). Appellee relies heavily upon United States v. Daneals, 370 F.Supp. 1289 (W.D.N.Y. 1974), in which a district court dismissed a number of indictments for selective service violations for reasons including what it found to be the failure of the government to comply with § 462(c). That court did measure delay for purposes of the statute from the time the cases were referred to the U.S. Attorney, but the underlying decision that the referrals constituted adequate requests for expeditious prosecution is only an implicit one. It is unarticulated and unexplained, and therefore offers no persuasive authority for the position argued for by appellee. Moreover, Daneals involved a number of grand jury abuses, and these figured in the district court’s decision to dismiss. And the court refused to dismiss the indictments with prejudice, leaving open the question “whether or not the failure of the government to proceed expeditiously in these cases was serious enough to prevent any indictment in particular cases.” 370 F.Supp. at 1301.
The other case relied upon by appellee, United States v. Dyson, 469 F.2d 735 (5th Cir. 1972), is of no more assistance to him. The case does not discuss any of the issues directly relevant here — it deals with post-indictment delay in applying § 462(a), and § 462(c) is mentioned but not explained or applied.
Since we have determined that the mandate of § 462(e) does not apply to this case due to the lack of an adequate request by the Director of Selective Service, we need not decide whether the section, when applicable, inures to the benefit of a defendant and justifies dismissal of the indictment when a prosecutor has failed to comply. Nor need we consider whether the statute requires greater expedition than that guaranteed by the Sixth Amendment or whether delay in selective services cases subject to the statute is measured from referral to the U.S. Attorney.
Although there was a delay of 32 months in this case between the alleged violation and indictment, and 14 months between referral to the U.S. Attorney and indictment, appellee has demonstrated no violation of his Sixth Amendment right to a speedy trial. Delay is measured for purposes of the Sixth Amendment from the time one is accused of a crime, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and appellee became an “accused” when indicted on December 19, 1973. There has been no claim of unconstitutional delay since that time.
Reversed.
. We are advised that a number of cases involving the interpretation of § 462(c) have been decided or are now pending in the District of Massachusetts.
. Because of our resolution of the other issues, we need not decide whether a specific request made by the State Selective Service Headquarters is that of the Director of Selective Service for purposes of § 462(c).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 50. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WESTINGHOUSE ELECTRIC CORPORATION, Defendant, Appellant, v. WRAY EQUIPMENT CORP., Plaintiff, Appellee. ALD NEW YORK, INC. Defendant, Appellant, v. WRAY EQUIPMENT CORP., Plaintiff, Appellee.
Nos. 5682, 5683.
United States Court of Appeals First Circuit.
Feb. 2, 1961.
John M. Hall, Boston, Mass., with whom Rhodes G. Lockwood and Choate, Hall & Stewart, Boston, Mass., were on brief, for appellant Westinghouse Electric Corp.
Douglas L. Ley, Boston, Mass., with, whom Elliott Y. Grabill, Nathaniel J. Young, Jr., and Grabill, Ley & Mason,. Boston, Mass., were on brief, for appellant ALD New York, Inc.,
James M. Malloy, Boston, Mass., with whom Ralph Warren Sullivan and Morton Myerson, Boston, Mass., were on brief, for appellee.
Before WOODBURY, Chief Judge, HARTIGAN, Circuit Judge, and JULIAN, District Judge.
HARTIGAN, Circuit Judge.
These are appeals from a judgment of the United States District Court for the District of Massachusetts entered for plaintiff on March 25, 1960.
Plaintiff-appellee, Wray Equipment Corp., sued Westinghouse Electric Corporation (Westinghouse) and ALD New York, Inc. (ALD) for treble damages under the Sherman and Clayton Acts, 15 U.S.C.A. § 1 et seq., alleging that the defendants and various co-conspirators had conspired and were conspiring to monopolize and unreasonably restrain interstate trade and commerce in half-hour launderette machinery and equipment, and that by various acts done in furtherance of this conspiracy plaintiff had been injured in its business.
The plaintiff alleged that the conspiracy and acts in furtherance of it included: (1) an agreement between Westinghouse and ALD that Westinghouse would not sell its nine pound laundry machines to any launderette machinery distributor other than ALD and that ALD would purchase nine pound machines only from Westinghouse; (2) pursuant to the agreement and with the approval of ALD, Westinghouse refused to sell its nine pound machines to plaintiff at any price; (3) with the approval of Westinghouse, ALD refused for several months to sell nine pound machines to plaintiff at a price lower than that charged individual launderette operators and subsequently ALD refused to sell nine pound machines to plaintiff at any price; (4) with the approval of Westinghouse, ALD used its ■exclusive right to distribute Westinghouse nine pound machines to cause prospective launderette operators desiring these machines to purchase from ALD their entire requirements of twenty-five pound laundry machines, dryers, etc.; (5) with the approval of Westinghouse, ALD used its exclusive right to distribute the Westinghouse nine pound machine as the basis for threatening manufacturers of twenty-five pound machines, boilers, dryers, etc. with a boycott if they did not discontinue making sales to the plaintiff. Plaintiff alleged, inter alia, that as a result of the conspiracy and the acts in furtherance of it, (1) plaintiff had been prevented from making sales of Westinghouse nine pound machines to launderette operators; (2) plaintiff had been prevented from making sales of boilers, dryers, etc. to launderette operators who desire to use Westinghouse nine pound machines; (3) manufacturers of the associated equipment have refused to sell to plaintiff and have refused to meet shipping commitments on machines already sold to plaintiff.
The case was tried by the district court sitting without a jury. An unnecessarily protracted trial of twenty-eight days was held during which a great deal of evidence was received by the court over the objection of the defendants. The district judge announced several times that in order to conduct the trial expeditiously he would receive the evidence but that it was subject to a motion to strike to be made at the conclusion of the trial. Motions to strike were made by the defendants at the close of the evidence. In the preface to its findings of facts and conclusions of law the lower court stated: “Defendant ALD submitted a Motion to Strike, which is denied.”
The court made findings of facts and conclusions of law that plaintiff was entitled to recover treble damages under the Sherman and Clayton Acts and entered judgment for the plaintiff.
Defendants in their appeals specify numerous errors, but we do not believe it is necessary to discuss all of them in the disposition which we make of this case.
We believe that the district court erred prejudicially by failing to grant defendants’ motions to strike certain evidence objected to by the defendants. The president of Hoyt Manufacturing Corp., Harry Hoyt, was called as a witness by the plaintiff to testify in connection with an alleged attempt by ALD to have Hoyt Manufacturing Corp., a manufacturer of dryers, slow down delivery of a dryer to plaintiff. When Hoyt was asked at the trial if defendant ALD’s employee Rowan had spoken to him about an order from plaintiff, Hoyt replied that he had no recollection of such a conversation. Plaintiff’s counsel then asked: “Do you recall testifying on deposition in this case * * * ?” Hoyt replied: “I recall making a deposition, yes, sir.” Plaintiff’s counsel then read from the deposition, stating he was so doing for two purposes, to refresh the witness’ recollection and to indicate a prior inconsistent statement. At the conclusion of the reading, plaintiff’s counsel asked Hoyt:
“Q. Do you recall so testifying, Mr. Hoyt? A. If that is my deposition, I do.
“Q. The statements you made there are true ? A. They would be, yes, sir.”
On cross-examination Hoyt was asked:
“XQ. Do you have any memory now of the conversation you had with Mr. Rowan? A. Other than what the deposition shows, [sic]
“XQ. Did Mr. Rowan make any suggestions to you that the shipment to Wray Equipment Company be delayed? A. I do not recall.”
Earlier in his testimony when Hoyt was questioned by plaintiff’s counsel in regard to the delay of shipment he said:
“Q. You have no recollection of these transactions, independent of the documents I must show you ? A. No, I haven’t. I haven’t had access to them. It has been, what, four or five years?
“Q. You do recall that you testified at some length about these transactions ? A. I do.
“The Court: You knew you were going to be a witness here?
“The Witness: Yes, sir.
“The Court: You knew you had answered some questions by way of deposition ?
“The Witness.: Yes, sir.
“The Court: Did it occur to you it would have been a good idea to refresh your recollection on the questions that you were asked in the deposition, at the time it was taken, when you knew you were going to be here?
“The Witness: Mr. Malloy [counsel for plaintiff] said that he would have the deposition here.”
In the deposition read during the trial Hoyt had stated: “That was one of my reasons [for delaying the plaintiff’s order] . I tried to exercise a certain amount of prudence. If a man is going to hold me up, I am not going to find out whether he has a real bullet in his gun.” The district judge in commenting on this testimony recognized that Hoyt was not testifying from his present recollection and said: “Figuratively speaking, someone put a gun to his head. * * * He [Hoyt] gave an answer four and a half years ago, and he very frankly and honestly said: Tf I gave that answer under oath, my memory then was better than now, and that is the answer’ and that is what I would expect a good citizen to say * * * ”
The cases are clear, however, that a deposition used in an attempt to refresh the witness’ recollection is not itself admissible as evidence. See United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129; 5 Wigmore, Evidence § 1415 (3d ed. 1940). When a witness is unable to recall a past transaction, the majority of the cases do not allow a prior statement of the witness concerning that transaction to be introduced as a prior inconsistent statement. See Corsick v. Boston Elevated Ry., 1914, 218 Mass. 144, 105 N.E. 600; 3 Wigmore, Evidence § 1043 (3d ed. 1940). We believe that the district court erred in receiving the deposition of plaintiff’s witness Hoyt. The incorporation of Hoyt’s gun figure of speech from his deposition in the court’s opinion as well as frequent references to it by the court during the trial indicates that defendants were prejudiced by the admission into evidence of the deposition.
There is another matter which arose during the trial that warrants comment because it may be met again in a new trial. Parts of several other depositions were properly admitted and read into evidence by plaintiff’s counsel. When counsel for the defendants sought then to have introduced other parts of these depositions relevant to those read into evidence, relying on F.R.Civ.P. 26(d) (4), 28 U.S.C.A., the district court refused to allow such procedure. The court indicated that defendants could introduce the desired parts at a later time.
We have been directed to no cases bearing directly on this point. Rule 26(d) (4) provides:
“If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.”
The rule provides a method for averting, so far as possible, any misimpressions from selective use of deposition testimony. The opposing party is entitled under the rule to have the context of any statement, or any qualifications made as a part of the deponent’s testimony also put into evidence. We believe that the spirit of the rule dictates that the opposing party should be able to require the introduction of the relevant parts of the deposition testimony at least at the conclusion of the reading of the deposition. In the instant case the supplementary relevant testimony authorized by the rule was separated by more than 1,000 pages of transcript from the deposition testimony introduced by the plaintiff. It seems to us that such wide separation of the relevant parts of a deposition unduly impedes the orderly consideration of the deposition testimony, even in a non-jury case.
We conclude from a careful reading of the record of approximately 2,000 pages that the trial judge was prejudiced in favor of the plaintiff. Several indications of this prejudice are manifest in his “cross-examination” of certain of the defendant’s witnesses. Perhaps his prejudice was a result of Hoyt’s reference to a gun in his deposition, which appears from the record to have made an extreme and unreasonable impression on the trial judge. Whatever the cause, the court’s prejudicial attitude warrants a new trial before another judge.
We express no opinion on the merits of this case.
Judgment will be entered vacating the judgment of the district court and remanding the case for a new trial consistent with this opinion.
. The record does not contain any disposition by the court of defendant-Westinghouse’s motion to strike certain evidence from the record.
. Wigmore states that the basis of this exclusion is the possibility of improper testimonial effect being given to the prior statement. The instant case presents a forceful example of this clanger.
. Toward the end of the trial the plaintiffs counsel offered the parts read by defendants’ counsel as part of plaintiffs case and the court so noted. We do not believe that this step obviated the defect pointed out below.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_circuit
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ZONOLITE CO. v. UNITED STATES.
No. 10980.
United States Court of Appeals Seventh Circuit.
March 25, 1954.
H. Brian Holland, Asst. Atty. Gen., Carolyn R. Just, Atty., U. S. Dept, of Justice, Washington, D. C., Robert Tie-ken, U. S. Atty., Chicago, Ill., Otto Kerner, Jr., U. S. Atty., John A. Looby, Jr., Asst. U. S. Atty., Chicago, Ill., Ellis N. Slack, Joseph F. Goetten, Sp. Assts. to Atty. Gen., for appellant.
John H. Bishop, William M. Doherty, Chicago, Ill., for appellee.
Before DUFFY, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This is an appeal from a judgment of the District Court granting a refund to plaintiff on account of an asserted overpayment of corporate income tax for the fiscal year ended March 31, 1945.
The material facts are as follows;
Plaintiff is a Montana corporation with its principal office in Chicago, Illinois. During the period in question it was engaged in the mining of a non-metallic mineral called vermiculite from a mine approximately seven miles northeast of Libby, Montana. The crude mineral was removed from an open-pit mine and transported by tractors to a cleaning and concentrating plant approximately one-half mile from the pit. At the plant the crude mineral was put through a process consisting essentially of crushing, drying and screening. The concentrate so produced was transported by tramway to ore bins, from which it was loaded into trucks and hauled to the nearest railroad at Libby, Montana. The concentrate was there loaded into railroad cars for shipment to the taxpayer’s customers. Concentrate not loaded directly into railroad cars was placed in storage bins at the railroad siding at Libby until such time as it was required to fill orders from customers. The major part of the vermiculite concentrate which was shipped from Libby, Montana, was sold by the taxpayer to processors located at various points in the United States. These processors have plants in which they treat the concentrate by subjecting it to a high degree of heat. When the concentrate is processed, it expands, the volume of the expanded product being about fifteen times greater than the volume of the concentrate. The expanded product is used for insulation, plaster and concrete aggregate, high temperature cements, fertilizer conditioner, and other similar purposes.
The vermiculite concentrates were sold f. o. b. cars at Libby, Montana. The average selling price for the different grades of concentrates was $10.70 per ton. During the fiscal year in question the taxpayer mined and transported to the railroad at Libby 64,901 tons of concentrates. It paid a private hauling contractor 70{S per ton to truck the concentrates from the ore bins at the mine to the railroad, the total payment amounting to $45,430.86. Approximately four of the seven miles from the taxpayer’s mine to Libby are covered by a state highway; the remaining three miles are covered by a road which is maintained by the taxpayer and about one-third of which is over property owned by the taxpayer. It probably would not be economically feasible for each of the taxpayer’s customers to make his own arrangements to have the vermiculite concentrate hauled from the lower bin to the town of Libby, to ha,ve freight cars there available, and to have such cars loaded and routed to their destination as needed. The vermiculite concentrate which comes from the taxpayer’s milling operations is the first saleable product which results from the operation. It is sold to the taxpayer’s customers in the same form in which it leaves the taxpayer’s mill; any further processing by which it is made into commercial products is done after sale by the taxpayer to such customers. The taxpayer’s gross sales of concentrates, taking the selling price f. o. b. Libby, Montana, amounted to $501,917.04. For that year the taxpayer computed its percentage depletion allowance at 15% of this figure. In determining an income tax deficiency, the Commissioner of Internal Revenue reduced the taxpayer’s depletion allowance to 15% of $456,486.18, the figure of $501,917.04 minus the amount of $45,-430.86 which represented the cost of having the concentrates trucked from the ore bins at the mine to the railroad at Libby.
Having paid the income tax deficiency determined by the Commissioner and having had its claim for refund of that portion of the deficiency due to the reduction of its depletion allowance denied, the taxpayer brought this suit for refund in the District Court.
The United States contends that the District Court erred in holding that the taxpayer’s gross income from mining, upon which the percentage deduction allowable for depletion under Sections 23 (m) and 114(b) of the Internal Revenue Code, 26 U.S.C.A. §§ 23 (m), 114(b), is based, should include income received by the taxpayer for transporting its mineral product in the form in which it is sold from the mine to the place of sale.
Plaintiff contends that gross income from vermiculite mining to which percentage depletion deductions are applied means the amount received as the gross sales price of a commercially marketable mineral product that is mined, milled and delivered at a point where such product can be sold. It further contends that the depletion statutes should be applied to specific minerals in order to meet the peculiar conditions of each case; that vermiculite, a non-metallic mineral, is unusual in that the product is marketable only after it has been transported to the railroad and loaded on board railroad cars; that the gross income from mining vermiculite is the amount received from the sale of the commercially marketable mineral product resulting from the application of the ordinary treatment processes, i. e., the sales price f. o. b. cars at the railroad ; that such transportation as is necessary to produce the commercially marketable mineral product including trucking from the mine to the railroad, is part of the treatment process and- is therefore not to be excluded from the gross income in computing the amount to which the percentage depletion deduction is to be applied.
Certain sections of the Internal Revenue Code, 26 U.S.C.A., must be considered. Section 23(m) provides:
“In computing net income there shall be allowed as deductions: ******
(m) Depletion. In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary.”
Section 114(b) (4) (A) and (B) read as follows:
Ҥ 114. Basis for depreciation and depletion
****** (b) Basis for depletion ******
“(4) (A) In general. The allowance for depletion under section 23 (m) shall be * * * in the case of * * * vermiculite * * * mines * * * 15 per centum * * of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. * * *
“(B) Definition of gross income from property. As used in this paragraph the term ‘gross income from the property’ means the gross income from mining. The term ‘mining’, as used herein, shall be considered to include not merely the extraction of the ores or minerals from the ground but also the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products. * * * (iii) in the case of iron ore, bauxite, ball and sagger clay, rock asphalt, and minerals which are customarily sold in the form of a crude mineral product— sorting, concentrating, and sinter-ing to bring to shipping grade and form, and loading for shipment; and (iv) in the case of lead, zinc, copper, gold, silver, or fluorspar ores, potash, and ores which are not customarily sold in the form of the crude mineral product — crushing, grinding, and beneficiation by concentration (gravity, flotation, amalgamation, electrostatic, or magnetic), cyanidation, leaching, crystallization, precipitation (but not including as an ordinary treatment process electrolytic deposition, roasting, thermal or electric smelting, or refining), or by substantially equivalent processes or combination of processes used in the separation or extraction of the product or products from the ore, including the fur-nacing of quicksilver ores.”
Pertinent Treasury Regulations, promulgated under the Internal Revenue Code, and in effect at the time involved herein, are parts of Section 29, 26 Code of Federal Regulations, as follows:
“Sec. 29.23(m)-l. Depletion of mines, oil and gas wells, other natural deposits, and timber; depreciation of improvements. — Section 23 (m) provides that there shall be allowed as a deduction in computing net income in the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements. Section 114 prescribes the bases upon which depreciation and depletion are to be allowed. ******
“(f) [as amended by T.D. 5413, 1944 Cum.Bull. 124] The term ‘gross income from property,’ as used in sections 114(b)(3) and 114 (b)(4)(A) and sections 29.23(m)-l to 29.23 (m)-28, inclusive, means the following: ******
“In the case of a crude mineral product other than oil and gas, ‘gross income from the property,’ as used in section 114(b) (4) (A) means the gross income from mining. The term ‘mining’ as used herein includes not only the extraction of ores or minerals from the ground but also the ordinary treatment processes which are normally applied by the mine owners or operators to the crude mineral product after extraction in order to obtain the commercially marketable mineral product or products.
“If the taxpayer sells the crude mineral product of the property in the immediate vicinity of the mine, ‘gross income from the property’ means the amount for which such product was sold, but, if the product is transported or processed (other than by the ordinary treatment processes described below) before sale, ‘gross income from the property’ means the representative market or field price (as of the date of sale) of a mineral product of like kind and grade as beneficiated by the ordinary treatment processes actually applied, before transportation of such product. If there is no such representative -market or field price (as of the date of sale), then there shall be used in lieu thereof the representative market or field price of the first marketable product resulting from any process or processes (or, if the product in its crude mineral state is merely transported, the price for which sold) minus the costs and proportionate profits attributable to the transportation and the processes beyond the ordinary treatment processes.
.• “The term ‘ordinary treatment processes’ as used herein, shall include the following: -
“(3) In the case of iron ore, bauxite, ball and sagger clay, rock asphalt, and minerals which are customarily sold in the form of crude mineral product-sorting, concentrating, and sintering to bring to shipping grade -and form, and loading for shipment; * * * * * *
“In case any of the ordinary treatment processes are hot applied' in the immediate-vicinity of the mining district in which the mine is located, costs incurred for transportation to the processing location and; if-transported by the taxpayer, the proportionate profits attributable to transportation, should be subtracted from the sale price of the product .to determine ‘gross income from the property:’ * - * ■ # * * *
. “Sec. 29.23 (m)-5 [as amended by T.D. 5413, süpra] Computation of depletion based on percentage of income in caée .of vermiculite. mines, * •* * Under section 114(b)(4) (A) a taxpayer may- deduct for depletion *' * * an amount equal to 15 percent of the gross' income from the property * ? ■ * during any taxable year beginning' after December 31, 1943 in the case of vermiculite, * * * but such deduction shall not in any case exceed 50 percent of . the net income of the taxpayer (computed without allowance for depletion) from the property. * * *
■ “Sec. 29.114-1 [as amended by T. D. 5413, supra] Basis for allowance of depreciation and depletion. — The basis upon which * * * depletion will be allowed in respect of any property is the same as is provided in section 113(a), adjusted as provided in section 113(b), for the purpose of determining the gain-from the sale or other disposition of' such property, * * * except as provided * * * in section 29.23 .(m)-5, relating to percentage depletion * * * in the case.of-vermiculite, ■ * -* * with respect to taxable years- beginning- after December 31, 1943. * * *”
Under the above quoted - provisions of the Internal Revenue Code, supplemented by the above quoted Regulations, plaintiff Was entitled to an allowance for depletion amounting to 15 percentum of the gross income from its property during the taxable year. This means the gross income from mining which includes not merely the extraction of the vermiculite from the ground but also -the treatment processes which it used, but not including the cost of transportation from the concentrating plant, (about one-half mile from the open-pit mine), to Libby. The vermiculite concentrate was already a commercially marketable mineral product when it started' on the seven-mile journey to Libby.
It is apparent that the concentrate when it was ready for the trip to Libby could not be sold, and that if a sale was to be made the concentrate had to be transported, as’ was done. Plaintiff, therefore, contends, that this transportation is as much a -part of the treatment process as the transportation from the mine to the mill.
Congress has recognized that in fairness there should be compensation to the owner for the exhaustion of the mineral deposits in the course of production: United States v. Ludey, 274 U.S. 295, 302, 47 S.Ct. 608, 71 L.Ed. 1054.
In Helvering v. Mountain Producers Corp., 303 U.S. 376, at page 381, 58 S. Ct. 623, at page 625, 82 L.Ed. 907, the court said:
“But to appraise the actual extent of depletion on the particular facts in relation to each taxpayer would give rise to problems of considerable perplexity and would create administrative difficulties which it was intended to overcome by laying down a simple rule which could be easily applied. To this end, the taxpayer was permitted to deduct a specified percentage of his gross income from the property. See United States v. Dakota-Montana Oil Co., 288 U.S. 459, 461, 53 S.Ct. 435, 436, 77 L.Ed. 893. Congress was free to give such an arbitrary allowance as the deduction was an act of grace. In answer to the contention that the provision may produce ‘unjust and unequal results,’ we have remarked that this is likely to be so ‘wherever a rule of thumb is applied without a detailed examination of the facts affecting each taxpayer.’ Helvering v. Twin Bell [Oil] Syndicate, 293 U.S. 312, 321, 55 S.Ct. 174, 178, 79 L.Ed. 383.
“The rule being of this sort for obvious purposes of administrative convenience, we must apply it in the simple manner it contemplates.”
We think that the Act and the Regulations are clear. If they be illogical or unfair in their application to plaintiff’s mining operation, relief is not available to plaintiff in this court, which has no legislative power. It is our duty to interpret and not change statutory law.
In Consumers Natural Gas Co. v. Commissioner of Internal Revenue, 2 Cir., 78 F.2d 161, it was held that the act fixing depreciation allowance on gas wells at a stated percentage of gross income from the property refers to income from gas at the well and not to gas at the point of sale to consumers after piping. In its reasoning the court said:
“It is quite true, as the taxpayer says, that no single formula will give a rational result for all wells. The same percentage will be too much for one deposit and too little for another; that is an inevitable consequence of abandoning any effort to learn its amount; the plan is a makeshift, at best no more than an approximation to the average of many instances. * * * But these defects are no excuse for not eliminating whatever else will impair the validity of the solution, so far as it has any validity at all.”
It, therefore, follows that the District Court erred and its judgment is hereby reversed.
Reversed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
NATIONAL LABOR RELATIONS BOARD v. MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNIONS NOS. 338 AND 680, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO.
No. 412.
Decided June 23, 1958.
Solicitor General Rankin, Jerome D. Fenton, Stephen Leonard, Dominick L. Manoli and Norton J. Come for petitioner.
Samuel J. Cohen for Local 338, respondent.
Thomas L. Parsonnet for Local 680, respondent.
Per Curiam.
The petition for writ of certiorari is granted. The judgment of the Court of Appeals is reversed on the authority of Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. v. National Labor Relations Board; National Labor Relations Board v. General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local No. 886, AFL-CIO; and Local 850, International Association of Machinists, AFL-CIO, v. National Labor Relations Board, all decided together June 16, 1958, and reported ante, p. 93.
The Chief Justice, Mr. Justice Black, and Mr. Justice Douglas dissent for the reasons stated in the dissenting opinion of Mr. Justice Douglas in these cases.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HAMILTON PLASTIC MOLDING COMPANY, Respondent.
No. 14958.
United States Court of Appeals Sixth Circuit.
Feb. 6, 1963.
Marion Griffin, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Broad, Atty., N.L.R.B., Washington, D.C., on the brief), for petitioner.
J. Mack Swigert, Cincinnati, Ohio (Frank H. Stewart, Cincinnati, Ohio, on the brief; Robert G. Woellner, Cincinnati, Ohio, of counsel), for respondent.
Before McALLISTER, MILLER, and O’SULLIVAN, Circuit Judges.
McALLISTER, Circuit Judge.
This is a petition for enforcement of an order of the National Labor Relations Board which found that Local Union 156, Upholsterers’ International Union of North America, AFL-CIO, was the bargaining agent of respondent’s employees, and that respondent was guilty of unfair labor practices in refusing to bargain collectively, as well as violating the National Labor Relations Act in interrogating employees about their Union membership and using threats and promises in violation of the law.
The Hamilton Plastic Molding Company is an Ohio corporation. It is a small organization engaged in the manufacture of plastic products, principally toys. Its busy season is from about the first of September until shortly before Christmas. Its complete staff, including supervisors, ranges from eight in the slack season, to as many as thirty in the busy season. It employs a single clerical employee, a toolmaker, and a varying number of machine operators. It has its plant and place of business in New Burlington, Ohio.
On May 9, 1960, four of the men working for the company went to the office of Local Union No. 156, and told Arthur Cook, the Union’s business manager, that “they were interested in trying to put a Union into their plant.”
One of the four men was Anthony Michaels, foreman of the company’s third shift. Another was Lonnie Whitaker, a machine operator, and an employee within the meaning of the National Labor Relations Act. The other two were Frank Papania and Lawrence Heis, whose status as foremen or as employees, was, and is, in dispute. These four men each signed one of the Union’s combination bargaining authorization and check-off cards, and returned to Cook the next day with similar cards signed by seven more of the company’s machine operators. The company’s payroll list for May 10, 1960, included the plant superintendent, Foreman Michaels, and another shift foreman (who were admittedly supervisors), and also the only clerical employee. There was also one machine operator, Anglian, who was solicited by a foreman to sign a card. Altogether, there were nineteen persons on the payroll, counting the two supervisors, the clerical employee, and the machine operator who had been solicited to sign the authorization by a foreman. Omitting these four, there were fifteen on the payroll. It is claimed by respondent company that, of these fifteen, two were supervisors, namely: Papania and Heis. Counting Papania and Heis as employees rather than as supervisors, the Union had in its possession on March 10, 1960, the apparently valid bargaining authorizations of ten out of fifteen of the company’s production employees. If Papania and Heis, whose status is in (Jispute, as above mentioned, are to be considered supervisors, the Union had the bargaining authorizations of eight out of thirteen of the company’s employees. Considering Papania and Heis as supervisors rather than employees, the Union still had a majority of bargaining authorizations of the company’s employees on May 10,1960. However, if Papania and Heis were supervisors, the bargaining authorizations solicited by them from the employees would be invalid, and the Union would not have had a majority authorizing it to act as bargaining agent.
The crucial question, therefore, is whether Papania and Heis were supervisors or employees. A further question for determination in this proceeding is whether respondent company was guilty of unfair labor practices in interrogating its employees as to their Union membership, and indulging in threats and promises, thereby interfering with, restraining, and coercing its employees in the exercise of their rights under the Act.
We do not have before us any question of reinstatement of employees discharged by respondent company, or liability of the company for back pay to any employees. In the original complaint, the Board alleged that respondent company had committed unfair labor practices by discriminatory layoffs of Frank Papaiiia, Lawrence Heis, Lonnie Whitaker, and Robert Kichler, the leaders of the Union organization movement. However, at the beginning of the hearing before the Trial Examiner, the General Counsel moved to strike this allegation of discriminatory layoffs, and the motion was granted.
The Trial Examiner found that Pa-pania and Heis, as well as Foreman Michaels, were supervisors.
Papania testified on the hearing that he was first hired in 1959; that four months later he became assistant foreman on the first shift; that later he became foreman on the third shift; that thereafter he became assistant foreman, on the first shift; and that he was more or less in charge of the first shift in the room when the plant superintendent was not there. It was conceded by the General Counsel that Papania was a “supervisor” as defined in the Act, while he was foreman of the third shift.
The reasons for the findings and conclusions of the Trial Examiner are best set forth in his report as follows:
“Coming now to the disputed question of whether Papania and Heis were supervisors on May 10, 1960, it appears that Papania was then working on the first shift from 8 a.m. to 4 p.m., that Heis was working on the second shift from 4 p.m. until midnight, and that the functions and duties of the two men were the same on their respective shifts. At the time, the Respondent was running three shifts, with from three to five machine operators on each shift. Superintendent Lew Babbitt was in overall charge of the plant and, since Babbitt was normally in the plant from 7 a.m. until 5 p.m., there was no foreman for the first shift on which Papania worked. Apparently because of Babbitt’s absence during the other two shifts, Foreman Ray Stemmerding was in charge of the second shift on which Heis worked, and Foreman Anthony Michaels was in charge of the third shift from midnight to 8 a.m.
“Until May 2, 1960, Papania had been foreman of the third shift but, at his own request, he was then transferred to the first shift and replaced by Michaels as foreman on the third shift. According to Pa-pania’s testimony, upon his transfer to the first shift, he was told by Superintendent Babbitt that he was to be an ‘assistant foreman.’ Although Papania also testified that his wage rate was reduced 10 cents per hour, it appears from his canceled wage check, that his wage rate remained the same as it had been when he was foreman on the third shift.
“In performing their work on their respective shifts after May 2 (and thus on May 10, the critical date in this case), Papania and Heis sometimes operated the machines, relieved the other operators for dinner and other work breaks, mixed materials, filled the hoppers, repaired machines when they broke down, and even swept the floor. In these respects, Papania’s job after May 2 was the same as it had been before May 2 when he was foreman on the third shift. The evidence is in conflict, however, as to whether Papania and also Heis, had any such authority in directing the work of the machine operators as would make them supervisors within the meaning of Section 2(11) of the Act.
“According to Papania, his job on the first shift was the same as his job as foreman on the third shift ‘except for the responsibility.’ He explained that, as third shift foreman, he assigned operators to machines and to new jobs, unless on special work Babbitt made a particular assignment to an operator, and that he also permitted operators to go home when they were sick. But according to Papania, Superintendent Babbitt was always in the plant during the first shift, although perhaps in another room, and Papania, during his short service on the first shift, merely relayed Babbitt’s instructions to the girl operators. But Babbitt testified that, as he had informed Papania, Pa-pania was in complete charge of the first shift when Babbitt was not there. Upon Babbitt’s testimony to this effect and Papania's admission that Babbitt had said he was to be an assistant foreman when he was transferred to the first shift on May 2, I conclude that Papania did in fact have authority responsibly to direct the work of employees on his shift and that not only he, but also Heis whose job was identical on the second shift, were supervisors within the meaning of Section 2(11) of the Act. Consequently they were not employees within the appropriate unit which the Union sought to represent and neither they nor their cards may be counted in determining whether the Respondent was designated as bargaining representative by a majority of the employees in the unit. I further find that, with the proper exclusion of Papania and Heis as supervisors, the appropriate bargaining unit of production employees which the Union seeks to represent, consisted on May 10, 1960, of only 13 employees.
“My conclusion that Papania and Heis, as well as Foreman Michaels, were supervisors has an even broader significance affecting the Union’s claim of majority. For these three-supervisors along with employee-Whitaker not only started the Union’s organization of the Respondent’s employees by their visit to-Business Manager Cook’s office on May 9, but thereafter procured the-signatures of employees on the remaining seven of the bargaining authorization cards submitted by the General Counsel and the Union at. the hearing. Thus, according to-uncontradicted evidence, Foreman Michaels procured the signature of Louise Anglian; Papania procured the signatures of employees Fay Gullett, Eve Fowlie, Rosie Thompson, and Joyce Stoelting; and Heis,, in the company of employee Whitaker, procured the signatures of employees Betty Jo Noah and Robert Kichler. In this situation, I find that the seven cards procured by Supervisors Michaels, Papania, and Heis, are not to be counted as clearly free designations by the employees of the Union as their exclusive bargaining representative, and that the only apparently free and effective bargaining authorization submitted by the Union was that of employee Lonnie Whitaker. Upon the foregoing considerations, I conclude that the Union has shown only one effective bargaining authorization from the 13 employees composing the production unit appropriate for collective bargaining. Since the Union was therefore not freely designated as exclusive bargaining representative by a majority of the employees in the unit, the allegation of the complaint that the Respondent has refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act, has not been proved. I shall therefore recommend a dismissal of this allegation of the complaint.”
There was a conflict between the testimony of Papania and Superintendent Babbitt in regard to the extent of Papania’s authority. However, it was for the Trial Examiner to pass upon the weight of the evidence and the credibility of the witnesses, and the findings and conclusions of the Trial Examiner that Papania and Heis were supervisors were sustained by substantial evidence.
The Board reversed the Trial Examiner as to Papania and Heis, stating:
“In view of the routine work of the assistant foreman and the machine operators, the small number of employees working on each shift, and the fact that during each shift there was an admitted supervisor on duty at all times, we are satisfied that the authority and responsibility delegated to Papania and Heis were extremely limited. Even admitting that they may have made some assignments or transfers of machine operators, we believe that the Trial Examiner erred in concluding that this constituted an exercise of authority responsibly to direct the work of other employees.”
In Section 2(11) of the National Labor Relations Act, (29 U.S.C.A. §§ 151-197), a supervisor is defined as follows:
“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
When the Trial Examiner and the Board disagree on the evidence, we may not disregard the superior advantages of the Examiner, who heard and saw the witnesses, for determining their credibility. Ohio Associated Telephone Company v. N. L. R. B., 192 F.2d 664, 668 (C.A.6). See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 495, 496, 71 S.Ct. 456, 95 L.Ed. 456.
In Ohio Power Company v. N. L. R. B., 176 F.2d 385, 388, 11 A.L.R.2d 243 (C.A.6), this court set aside the Board’s determination as to supervisory powers, and sustained the Trial Examiner, and, in so ruling, stated:
“Section 2(11) covers any individual ‘having authority * * * responsibly to direct * * It does not require the exercise of the power described for all or any definite part of the employee’s time. It is the existence of the power which determines the classification. That power responsibly to direct exists here is uncontradicted. The control operator at all times responsibly directs the assistant control operator and the auxiliary equipment operator. * * * It is undisputed that in the absence of the shift operating engineer the responsibility rests upon the control operator to direct other employees in the handling of emergencies; that an emergency may require split second action, and that the control operator exercises this authority not as a matter of routine, but by the use of independent judgment.”
See also N. L. R. B. v. Mt. Clemens Metal Products Company, 287 F.2d 790 (C.A.6).
In accordance with the foregoing, we are of the view that the Board erroneously reversed the findings of the Trial Examiner that there was no unlawful refusal to bargain.
A review of the record discloses, however, that there is substantial evidence to sustain the findings and conclusions of the Trial Examiner, which were affirmed by the Board, that respondent was guilty of unfair labor practices in interrogating its employees as to their Union membership and indulging in threats and promises, thereby interfering with, restraining, and coercing its employees in the exercise of - their rights under the Act.
The order of the National Labor Relations Board is, therefore, modified as hereinbefore indicated, and, as so modified, enforcement thereof is decreed.
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_circuit
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ROLAND M. and Miriam M., Plaintiffs, Appellants, v. The CONCORD SCHOOL COMMITTEE, et al., Defendants, Appellees.
No. 89-2130.
United States Court of Appeals, First Circuit.
Heard June 4, 1990.
Decided Aug. 3, 1990.
As Amended Aug. 8, 1990.
Rehearing and Rehearing En Banc Denied Sept. 14, 1990.
David Berman, for appellants.
Richard N. Sullivan, with whom Kenney, Conley, Sullivan & Smith, P.C. was on brief, for appellees.
Before SELYA and SOUTER Circuit Judges, and BOWNES, Senior Circuit Judge.
Judge Souter heard oral argument in this matter, and participated in the semble, but did not participate in the drafting or the issuance of the panel's opinion. See 28 U.S.C. § 46(d).
SELYA, Circuit Judge.
Appellants Roland and Miriam M. reside in Concord, Massachusetts, with Matthew M., their 15-year-old son. Matthew is “handicapped” within the meaning of the Education of the Handicapped Act, 20 U.S.C. §§ 1400-1485 (1982 & Supp. V 1987) (the Act). When a controversy arose over his educational course, the Bureau of Special Education Appeals (BSEA), an adjunct of the Massachusetts Department of Education (MassEd), ruled that the Concord School Committee (Concord) had offered Matthew an appropriate education, but ordered the parents reimbursed for certain interim expenditures. On an ensuing petition for judicial review, the federal district court upheld the qualitative finding and decided that appellants should defray all the contested expenses. We affirm.
I. OVERVIEW
Through the medium of the Act, funds are allocated to assist the states in educating handicapped children. To receive federal money, a state must provide all handicapped children with “a free appropriate-public education.” 20 U.S.C. §§ 1400(c), 1414(b)(2)(A), 1416; see Burlington v. Department of Educ., 736 F.2d 773, 784-85 (1st Cir.1984) (Burlington II), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
Substantively, the “free appropriate public education” ordained by the Act requires participating states to provide, at public expense, instruction and support services sufficient “to permit the child to benefit educationally from that instruction.” Board of Educ. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049, 73 L.Ed.2d 690 (1982). While a state may not depart downward from the minimum level of appropriateness mandated under federal law, “a state is free to exceed, both substantively and procedurally,.the protection and services to be provided to its disabled children.” Burlington II, 736 F.2d at 792; see also 20 U.S.C. § 1401(18)(B). Some states have elected to go considerably above the federal floor. See, e.g., Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 983 (4th Cir.1990) (North Carolina requires that opportunity be given to handicapped students to reach their “full potential commensurate with the opportunity given other children”). Massachusetts is such a jurisdiction: the Commonwealth defines an appropriate education as one assuring the “maximum possible development” of the child. See Stock v. Massachusetts Hosp. School, 392 Mass. 205, 211, 467 N.E.2d 448, 453 (1984); see generally Mass.Gen.L.Ann. ch. 71B, §§ 1-14 (West 1982 & Supp.1990). Because state standards are enforceable in federal court insofar as they are not inconsistent with federal rights, David D. v. Dartmouth School Comm., 775 F.2d 411, 423 (1st Cir.1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986); Burlington II, 736 F.2d at 789 & n. 19, we refer to, and consider, Massachusetts law where relevant in the pages which follow.
As' a procedural matter, the Act commands that states and local education agencies (LEAs) like Concord “assure that handicapped children and their parents... are guaranteed procedural safeguards with respect to the provision of free appropriate public education.” 20 U.S.C. § 1415(a). The primary safeguard is the obligatory development of an individualized education program (IEP). Rowley, 458 U.S. at 181, 102 S.Ct. at 3038; Doe v. Defendant I, 898 F.2d 1186, 1189 (6th Cir.1990); see also 20 U.S.C. 1401(18); Mass.Gen.L. ch. 71B, § 3. That document compiles information and goals anent a particular student’s educational progress. It must include statements about the child’s current performance, long-term and short-term instructional targets, and objective criteria for measuring the student’s advance. See 20 U.S.C. § 1401(19); - 34 C.F.R. § 300.346 (1989).
Under the Act, mainstreaming is preferred. States must educate handicapped and non-handicapped children together “to the maximum extent appropriate,” see 20 U.S:C. § 1412(5); Rowley, 458 U.S. at 202, 102 S.Ct. at 3048, and special education must be provided in “the least restrictive environment,” see 34 C.F.R. § 300.552(d); Mass.Gen.L. ch. 71B, § 2; Mass.Regs.Code tit. 603, § 112.0 (1986). In Massachusetts, therefore, an IEP must address a handicapped student’s needs “so as to assure his maximum possible development in the least restrictive environment consistent with that goal.” David D., 775 F.2d at 423.
The development of an IEP requires the participation of a team of individuals, including the parents, the child’s teacher, designated specialists, and a representative of the LEA. See 20 U.S.C. § 1401(19); 34 C.F.R. § 300.344; Mass.Regs.Code tit. 603, § 311.0. Once promulgated, an IEP must be reviewed annually and revised when necessary. See 20 U.S.C. §§ 1414(a)(5), 1413(a)(1), (11); 34 C.F.R. § 300.343(d); Mass.Gen.L. ch. 71B, § 3. If complaints arise, the state must convene “an impartial due process hearing.” See 20 U.S.C. § 1415(b)(2). In the Commonwealth, this function is performed by the BSEA. Mass. Gen.L.Ann. ch. 15, § 1M (West Supp.1990). The hearing’s outcome is reviewable in either state or federal court, and the reviewing tribunal has broad discretion to grant appropriate relief. See Burlington, 471 U.S. at 369, 105 S.Ct. at 2002; Doe v. Brookline School Comm., 722 F.2d 910, 917-18 (1st Cir.1983); Carrington v. Commissioner of Educ., 404 Mass. 290, 294, 535 N.E.2d 212, 215 (1989). The court’s focus is upon the educational program which finally emerges from the administrative review process, not the IEP as originally proposed. See Springdale School Dist. v. Grace, 693 F.2d 41, 43 (8th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983).
II. BACKGROUND
We summarize the factual underpinnings and procedural history of this dispute, presenting additional details as necessary in the course of our opinion.
Matthew has a number of disabilities, including difficulties with visual motor skills, visual perception, visual tracking, fine motor coordination, and gross motor coordination. He is easily distracted and has trouble maintaining and regaining concentration. Consequently, Matthew finds it hard to relate to peers and his real-world functioning is impaired. He often talks to himself, destroys nearby objects, proves unable to get himself ready for school, eats sloppily, and so forth. Nevertheless, he possesses normal intelligence and enjoys significant potential for academic progress.
From kindergarten through fifth grade, Matthew attended the Concord public schools. He was placed in a self-contained classroom with other learning-disabled children. In June 1986, at the end of fifth grade, Matthew’s parents unilaterally moved him to Landmark, a private residential school. Some three months later, when the new school year was about to start, the parents rejected Concord’s 1986-87 IEP — which called for Matthew’s continued placement in public school — instead enrolling him at Landmark for the school year. Concord did not consent.
At the parents’ request, the BSEA undertook to determine Matthew’s appropriate placement for 1986-87. It was not until June 1987 (after the school year had ended) that the decision was announced. Finding that Matthew’s “major presenting problem” was a lack of socialization skills (rather than a learning disability per se), the BSEA, through its hearing officer, made a detailed comparison of Concord as opposed to Landmark, concluding that the former proposed a better program and that Matthew’s needs were “not so severe as to dictate a residential placement.” Hence, Concord’s 1986-87 IEP was adjudged appropriate with the addition of a supplementary, after-school socialization component. Although the BSEA acknowledged that Landmark was not the last agreed-upon placement, it nevertheless ordered Concord to reimburse appellants for first semester costs there.
Disappointed, the parents brought suit. In the district court, they assigned error to BSEA’s determination that Concord was an appropriate placement and to its refusal to grant reimbursement of Landmark-related expenses for the complete 1986-87 school year. Concord cross-claimed against MassEd, contending that the BSEA exceeded its authority by ordering any reimbursement.
In the meantime, Concord duly convened a team to prepare Matthew’s 1987-88 IEP. When issued on July 29, 1987, it proved to be much the same as the 1986-87 IEP. On August 28, Matthew’s parents rejected it. The federal court action was stayed while the BSEA held another round of hearings. On August 19, 1988, through a second hearing officer, BSEA ruled that the 1987-88 IEP was substantively acceptable and that certain claimed procedural defects were excusable. The BSEA also found that Landmark’s regimen was too restrictive and did not suitably address Matthew’s capacity to be mainstreamed. The decision duly noted Matthew’s progress at Landmark over the previous months — but the hearing officer remained “unconvinced that a nexus exist[ed]” between Matthew’s improvement and his tenure at Landmark. Appellants thereupon amended the federal court complaint to embrace their assertion that the second BSEA decision was unfounded.
At a trial encompassing both school years, the district court accepted only the administrative record as evidence and prevented the parents from calling certain additional witnesses. After briefing and argument, the judge found that the suggested IEPs were appropriate. She therefore affirmed defendants’ placement determinations for 1986-87 and 1987-88, but reversed the BSEA’s order that Concord reimburse Landmark’s fees for the first semester of the first school year.
III. SCOPE OF JUDICIAL REVIEW
We divide this phase of our analysis into two segments, discussing separately the criteria which govern (1) the district court’s review of the state agency’s decisions, and (2) appellate review of the district court’s judgment.
A. Trial-Level Review.
In this type of case, the law demands that the district court:
... shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
20 U.S.C. § 1415(e)(2). The court’s principal function is one of involved oversight. “[T]he Act contemplates that the source of the evidence generally will be the administrative hearing record, with some supplementation at trial,” and obligates the court of first resort to assess the merits and make an “independent ruling based on the preponderance of the evidence.” Burlington II, 736 F.2d at 790; see also Rowley, 458 U.S. at 205, 102 S.Ct. at 3050; Abrahamson v. Hershman, 701 F.2d 223, 230 (1st Cir.1983); Burlington v. Department of Educ., 655 F.2d 428, 431 (1st Cir.1981) (Burlington I). Nevertheless, the district court’s task is “something short of a complete de novo review.” Colin K. v. Schmidt, 715 F.2d 1, 5 (1st Cir.1983).
The required perscrutation must, at one and the same time, be thorough yet deferential, recognizing “the expertise of the administrative agency,... considering] the [agency’s] findings carefully and endeavoring] to respond to the hearing officer’s resolution of each material issue.” Burlington II, 736 F.2d at 791-92. Jurists are not trained, practicing educators. Thus, the statutory scheme binds trial courts to give “due weight” to the state agency’s decision in order to prevent judges from “imposing their view of preferable educational methods upon the States.” Rowley, 458 U.S. at 207, 102 S.Ct. at 3051. Hence, the court must render what we have called a “bounded, independent decision[] — bounded by the administrative record and additional evidence, and independent by virtue of being based on a preponderance of the evidence before the court.” Burlington II, 736 F.2d at 791.
Tracking the Act’s two overriding concerns, the trial court’s assessment of the IEP must address both procedural guarantees and substantive goals. The court must ask two questions:
First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?
Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051. While the inquiry is necessarily as multifaceted as the Act, the sufficiency of the IEP remains the paramount concern: “The ultimate question for a court under the Act is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time.” Burlington II, 736 F.2d at 788; see also Defendant I, 898 F.2d at 1191.
B. Appellate Review.
We have yet to address explicitly or in detail the standard by which the court of appeals should gauge the district court's ultimate determinations in cases under the Act. We do so today.
The question of whether an IEP is “adequate and appropriate”' is a mixed question of fact and law. Accord Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 293 (7th Cir.), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988); Gregory K. v. Longview School Dist., 811 F.2d 1307, 1310 (9th Cir.1987). Like other mixed questions, measuring the adequacy and appropriateness of an IEP asks nisi prius to determine whether certain facts possess, or lack, legal significance in a given case. See, e.g., Pavlidis v. New England Patriots Football Club, Inc., 737 F.2d 1227, 1231 (1st Cir.1984); Sweeney v. Board of Trustees, 604 F.2d 106, 109 n. 2 (1st Cir.1979) (collecting examples), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980). In short, the district court is required to make an evaluative judgment, applying “a legal standard to a particular set of facts.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2133, 48 L.Ed.2d 757 (1976).
Absent a showing that the wrong legal rule was employed, we have rather consistently taken the view that the district court’s answer to a mixed factlaw question is reviewable only for clear error. See, e.g., RCI Northeast Services Div. v. Boston Edison Co., 822 F.2d 199, 202 (1st Cir.1987); Pavlidis, 737 F.2d at 1231; Sweeney, 604 F.2d at 109 n. 2. Our past decisions under the Act have implicitly followed this approach. See David D., 775 F.2d at 415; Burlington II, 736 F.2d at 790; Colin K., 715 F.2d at 6; Abrahamson, 701 F.2d at 227; Doe v. Anrig, 692 F.2d 800, 808 (1st Cir.1982). Clear-error review seems peculiarly apt in the section 1415(e)(2) milieu, as gauging the adequacy and appropriateness of IEPs is a chore inevitably presenting “questions] whose determination ‘require[ ] delicate assessments... [that] are peculiarly ones for the trier of fact.’ ” New England Anti-Vivisection Soc., Inc. v. United States Surgical Corp., 888 F.2d 1198, 1203 (1st Cir.1989) (quoting TSC, 426 U.S. at 450, 96 S.Ct. at 2132). The fact that district courts frequently decide these cases without live testimony, on the basis of the administrative record, does not detract from the wisdom of clear-error review. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (rationale underlying clearly erroneous rule applies unabated to findings “based... on physical or documentary evidence”); In re Tully, 818 F.2d 106, 109 (1st Cir.1987) (clear-error standard applies “unconditionally to factfinding emanating from a ‘paper’ record”); Custom Paper Prod. Co. v. Atlantic Paper Box Co., 469 F.2d 178, 179 (1st Cir.1972) (the “appellate function does not differ” because no witnesses testified in person). We hold that, in the absence of a mistake of law, the court of appeals should accept a district court’s resolution of questions anent adequacy and appropriateness of an IEP so long as the court’s conclusions are not clearly erroneous on the record as a whole.
In the case before us, there was no “legal” error. The district court phrased the central issue as “whether the [IEP] addresses the child’s special educational needs so as to assure his maximum possible development in the least restrictive environment consistent with that goal.” We approve the court’s articulation of the governing legal principle. We are relegated, therefore, to ascertaining if the court’s ensuing determination that Concord’s educational plans for Matthew were “adequate and appropriate” was clearly wrong.
IV. ADEQUACY AND APPROPRIATENESS
We come now to the heart of the matter: the sufficiency of the IEPs proposed by Concord, endorsed by the BSEA, and found satisfactory by the court below. On the premise that one should look before leaping, we deem it advisable to delineate the yardstick by which adequacy and appropriateness must be measured prior to confronting appellants’ particularized challenges. We keep in mind that, in cases arising under the Act, the burden rests with the complaining party to prove that the agency’s decision was wrong. See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1988); Spielberg v. Henrico County Public Schools, 853 F.2d 256, 258 n. 2 (4th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1131, 103 L.Ed.2d 192 (1989).
A. The Yardstick.
In storming these ramparts, appellants rely heavily on the particulars of Massachusetts’ requirement that its special education programs “assure the maximum possible development” of handicapped students. See Mass.Gen.L. ch. 71B, § 2; see also Stock, 467 N.E.2d at 453. This substantive standard is admittedly higher than the federal “educational benefit” floor, Burlington II, 736 F.2d at 789, and makes the formulation and evaluation of IEPs a more complicated task in the Commonwealth than elsewhere. Be that as it may, the parents’ claim that their son’s academic progress at- Landmark necessarily demonstrated the inadequacy of Concord’s IEPs will not wash: even under the Massachusetts standard, a program which maximizes a student’s academic potential does not by that fact alone comprise the requisite “adequate and appropriate” education. In a nutshell, appellants’ per se approach is far too simplistic.
Let us be perfectly clear. Congress indubitably desired “effective results” and “demonstrable improvement” for the Act’s beneficiaries. Burlington II, 736 F.2d at 788. Hence, actual educational results are relevant to determining the efficacy of educators’ policy choices. See Defendant I, 898 F.2d at 1190. But, appellants confuse what is relevant with what is dispositive. The key to the conundrum is that, while academic potential is one factor to be considered, those who formulate IEPs must also consider what, if any, “related services,” 20 U.S.C. § 1401(17), are required to address a student’s needs. Irving Independent School Dist. v. Tatro, 468 U.S. 883, 889-90, 104 S.Ct. 3371, 3375, 82 L.Ed.2d 664 (1984); Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983).
Among the related services which must be included as integral parts of an appropriate education are “such development, corrective, and other supportive services (including... psychological services... and counseling services) as may be required to assist a handicapped child to benefit from special education.” 20 U.S.C. § 1401(17); see also 34 C.F.R. § 300.13; Mass.GemL. ch. 71B, § 1 (defining special needs to be addressed by special education). So long as the means for doing so fit within the statutory compendium, the-Act “require[s] that all of a child’s special needs must be addressed in the educational plan.” Burlington II, 736 F.2d at 788; see also 34 C.F.R. Pt. 300, App. C, Question 44 (“the IEP for a handicapped child must include all of the specific special education and related services needed by the child— as defined by the child’s current evaluation”). Thus, purely academic progress— maximizing academic potential — is not the only indicia of educational benefit implicated either by the Act or by state law.
Moreover, appellants’ argument misperceives the focus of an inquiry under 20 U.S.C. § 1415(e)(2): the issue is not whether the IEP was prescient enough to achieve perfect academic results, but whether it was “reasonably calculated” to provide an “appropriate” education as defined in federal and state law. See Rowley, 458 U.S. at 207, 102 S.Ct. at 3051; Defendant I, 898 F.2d at 1191; Denton, 895 F.2d at 980; Colin K., 715 F.2d at 4. This concept has decretory significance in two respects. For one thing, actions of school systems cannot, as appellants would have it, be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for “appropriateness,” an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated. See 34 C.F.R. Pt. 300, App. C, Question 38 (IEP’s annual goals “describe what a handicapped child can reasonably be expected to accomplish”); see also 34 C.F.R. § 300.349. For another thing, the alchemy of “reasonable calculation” necessarily involves choices among educational policies and theories — choices which courts, relatively speaking, are poorly equipped to make. “Academic standards are matters-peculiarly within the expertise of the [state] department [of education] and of local educational authorities.... ” Stock, 467 N.E.2d at 455. We think it well that courts have exhibited an understandable reluctance to overturn a state education agency’s judgment calls in such delicate areas — at least where it can be shown that “the IEP proposed by the school district is based upon an accepted, proven methodology.” Lachman, 852 F.2d at 297. As Chief Justice (then Justice) Rehnquist has written:.
The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardians of the child_ In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State’s choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2).
Rowley, 458 U.S. at 207-08, 102 S.Ct. at 3051. Beyond the broad questions of a student’s, general capabilities and whether an educational plan identifies and addresses his or her basic needs, courts should be loathe to intrude very far into interstitial details or to become embroiled in captious disputes as to the precise efficacy of different instructional programs. See Rowley, 458 U.S. at 202, 102 S.Ct. at 3048; Defendant I, 898 F.2d at 1191; Stock, 467 N.E.2d at 455.
There is one final basis on which we reject appellants’ per se argument. An IEP must prescribe a pedagogical format in which, “to the maximum extent appropriate,” a handicapped student is educated “with children who are not handicapped.... 20 U.S.C. § 1412(5)(B); 34 C.F.R. § 300.550(b)(1). Congress’ stated preference requires, in the eyes of both federal and state authorities, that education of the handicapped occur in “the least restrictive environment.” See 34 C.F.R. § 300.552(d); Mass.Gen.L. ch. 71B, §§ 2, 3. Mainstreaming may not be ignored, even to fulfill substantive educational criteria. “Just as the least restrictive environment guarantee cannot be applied to cure an otherwise inappropriate placement, similarly, a state standard cannot be invoked to release an educational agency from compliance with the mainstreaming provisions.” Burlington II, 736 F.2d at 789 n. 19; see also Roncker, 700 F.2d at 1063 (“a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming”).
Correctly understood, the correlative requirements of educational benefit and least restrictive environment operate in tandem to create a continuum of educational possibilities. See Rowley, 458 U.S. at 181 n. 4, 102 S.Ct. at 3038 n. 4; Burlington II, 736 F.2d at 785 n. 12; Abrahamson, 701 F.2d at 229 n. 10. To determine a particular child’s place on this continuum, the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement. See Lachman, 852 F.2d at 296. Assaying an appropriate educational plan, therefore, requires a balancing of the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum. Neither side is automatically entitled to extra ballast.
For these reasons, then, comparative academic progress, in and of itself, is not necessarily a valid proxy for, or determinative of, the degree to which an IEP was reasonably calculated to achieve the mandated level of educational benefit.
B. The Substantive Adequacy of the IEPs.
The precepts we have just surveyed frame the inquiry facing the court below: the issue was not whether Concord’s program was “better” or “worse” than Landmark’s in terms of academic results or some other purely scholastic criterion, but whether Concord’s program, taking into account the totality of Matthew’s special needs, struck an “adequate and appropriate” balance on the maximum benefit/least restrictive fulcrum. On this issue, the record sustains the district court’s affirmative conclusion.
In the first place, the district court was bound to give “due weight” to the agency’s judgment. See Rowley, 458 U.S. at 207. Second, the court obviously agreed with the BSEA hearing officers that Matthew required not only academic help but also socialization training and motor skills assistance. Having canvassed the evidence presented by Matthew’s teacher, his parents, and the treating professionals, we cannot say that such a conclusion constituted clear error. As a matter of maximizing Matthew’s educational benefit, those special needs were properly considered by the IEP team, notwithstanding the parents’ rather singleminded focus on academic results. See Hudson v. Wilson, 828 F.2d 1059, 1063 (4th Cir.1987); see also Mass. Gen.L. ch. 71B, § 2. The IEP ensured socialization therapy with a psychologist and occupational therapy to improve Matthew’s motor skills. Landmark’s regimen provided no motor skills training and no specific program of socialization therapy. It follows that Concord could lawfully implement an educational plan which it reasonably considered more appropriate and well-rounded than the Landmark program, especially when its IEP explicitly provided for more, and better diversified, “related services” keyed to Matthew’s specific handicaps. See, e.g., Wilson v. Maraña Unified School Dist., 735 F.2d 1178, 1182-83 (9th Cir.1984).
Additionally, appellants’ imprecations all but ignore the mainstreaming requirement. Defendants’ 1986-87 IEP proposed a nonresidential day program in public school. The plan called for Matthew to be taught in both self-contained classrooms (i.e., with other handicapped students) and in regular classrooms, thus allowing increased mainstreaming in classes like social studies and science where he had attained an acceptable level of performance. In contrast, as a residential school catering to a learning-disabled clientele, Landmark posed a much more restrictive environment and afforded decreased prospects for mainstreaming.
Last but not least, there was considerable room for the BSEA, and the district court, to find that the advantages inherent in the IEP did not severely compromise educational benefits. Concord’s teacher-student ratio was within the range recommended by two professionals who were treating Matthew (Drs. Cushna and Kinsb-ourne). Its faculty, by many measures, was more experienced and better credentialed than Landmark’s. Matthew's progress from 1984 to 1986 — a period which had been spent, for the most part, in the Concord public schools — was described by Dr. Cushna as “most astonishing.” Although the evidence showed that peer interaction remained a persistent problem, Matthew had been making good academic progress and was gaining self-confidence during the interval immediately before his parents unilaterally changed his placement.
In light of the evidence of Matthew’s specific needs and the differences, plus and minus, between the IEP, on the one hand, and the Landmark program, on the second hand, there was substantial proof from which the state agency could rationally conclude that the IEP was adequate and appropriate. Mindful of this evidence, and the weight to be accorded agency determinations in eases under the Act, we cannot say that the district court erred in striking the balance of factors in favor of the BSEA’s resolution of the question presented. Where the evidence permits two plausible views of adequacy/appropriateness, the agency’s choice between them cannot lightly be disturbed.
To this point, we have discussed the 1986-87 IEP to the virtual exclusion of the 1987-88 IEP. Yet, what we have written about the former applies full bore to the latter. Because the parents insisted that Concord not reevaluate Matthew, the 1987-88 IEP was drafted along the same lines as the 1986-87 plan. It reflected a mixture of self-contained and heterogeneous classes, speech/language training, and occupational therapy. The 1987-88 IEP also included a substantial after-school socialization component designed to bring Matthew into contact with both handicapped and non-handicapped children. One new feature was a specific allotment of time to an academic tutorial program. The alternative — Landmark’s program — remained substantially unchanged. For the same reasons as pertained in the previous year, the BSEA permissibly determined Concord’s 1987-88 IEP to be appropriate and substantively adequate. The lower court’s ratification of that finding was not clearly wrong.
C. The Procedural Adequacy of the 1987-88 IEP.
The scope of a district court’s inquiry into a state’s compliance with the procedural requirements of the federal Act encompasses not only the substance of special education, but also the adequacy of the process through which a particular IEP has been created. See Rowley, 458 U.S. at 206, 102 S.Ct. at 3050; Burlington II, 736 F.2d at 783, 787. In this case, appellants assert that certain procedural defects in the formation of the second IEP were so severe as to render it infirm.
We limn the guideposts. Courts must strictly scrutinize IEPs to ensure their procedural integrity. See Defendant I, 898 F.2d at 1190. Strictness, however, must be tempered by considerations of fairness and practicality: procedural flaws do not automatically render an IEP legally defective. See id. at 1191. Before an IEP is set aside, there must be some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits. See id.; Denton, 895 F.2d at 979, 982; Burlington II, 736 F.2d at 786.
Appellants urge, without citation to competent authority, that the district court should have shifted the burden to Concord to demonstrate that the alleged procedural defects referable to the 1987-88 IEP were harmless. We disagree. Congress’ special emphasis on the provision of procedural protections springs from the hope that an abundance of process and parental involvement will help ensure the creation of satisfactory IEPs acceptable to all concerned. See Rowley, 458 U.S. at 205-06, 102 S.Ct. at 3050; Burlington II, 736 F.2d at 783. Inasmuch as the caselaw makes manifest that the party allegedly aggrieved must carry the burden of proving that the educational agency erred in its substantive judgment, see supra p. 991 and cases cited, logic suggests that the burden be allocated in the same way when a party’s attack is garbed in procedural raiment. The court below correctly imposed the de-voir of persuasion on the complainants in respect to the harmfulness of the claimed procedural shortcomings. See Kerkam, 862 F.2d at 887; Spielberg, 853 F.2d at 258 n. 2; Burlington II, 736 F.2d at 794.
Turning to specifics, appellants’ complaints fall into two categories. In terms of output, they cite the use of computerized forms, the lack of a prioritized listing of Matthew’s educational
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_usc2sect
|
207
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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 second 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".
Russell SHEPPARD, Appellant, v. Barney CORNELIUS, trading as Barney Coal Company, and Leckie Smokeless Coal Company, Appellees. Ray E. RHODES, Appellant, v. Joe COSTA, trading as Joe Costa Coal Company, and Leckie Smokeless Coal Company, Appellees.
No. 8486.
United States Court of Appeals Fourth Circuit.
Argued March 28, 1962.
Decided April 26, 1962.
James K. Edmundson, Beckley, W. Va., for appellants.
Joseph M. Holt, Lewisburg, W. Va., and George Richardson, Jr., Bluefield, W. Va., for appellees.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BRYAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
In these proceedings, filed under § 16 of the Fair Labor Standards Act, the two plaintiffs assert a contractual claim to additional compensation by their employer. They had been paid at rates in excess of the minimum wages required by § 6 of the Act, but they contend that their employment was governed by the National Bituminous Coal Agreement of 1950, as amended, and they claim they should have been compensated at the higher rate specified in that agreement. They worked no more than forty hours in any week, so that the requirements of § 7 are not involved.
The District Court granted summary judgment for the defendants on the ground that there was no cause of action under the Fair Labor Standards Act, and no other basis of federal jurisdiction. We agree with the District Court.
By § 16(b) of the Fair Labor Standards Act, an employer may be held liable to an employee for unpaid wages due to have been paid under §§ 6 or 7 of the Act. The action may be maintained in any court of competent jurisdiction. Section 6 of the Act is violated, however, only if the actual rate paid is less than the minimum specified in that section. There is a violation of § 7 if compensation for hours worked in any week in excess of the maximum number is at a rate less than one and one-half the regular rate. Where overtime compensation is involved, of course, it is necessary to determine what the regular rate is, and, to do so, reference must be had to the rates prescribed in any applicable collective bargaining agreement. Payment of contract rates is not required by § 6, however, for hours worked in any week if they do not exceed the maximum fixed by § 7. If, therefore, the plaintiffs' employment was governed by the National Bituminous Coal Agreement of 1950, they may have an action founded upon the contract for unpaid wages, but they have not shown a violation of the Fair Labor Standards Act. Section 16 of that Act confers no jurisdiction upon this Court to adjudicate contractual claims for wages unless such adjudication is necessary to enforcement of the Act.
The plaintiffs seek to support the jurisdiction of the Court by reference to § 301 of the Labor Management Relations Act. That Act, of course, permits actions in the District Courts of the United States, without regard to the amount in controversy, by or against a labor organization representing employees, for violations of collective bargaining agreements. It is now settled that the United States District Courts have jurisdiction to enforce the arbitration provisions of a collective bargaining contract at the instance of the recognized representative of the employees when the relief sought is additional compensation or benefits due the employees generally under other provisions of the •contract. Earlier, however, the Supreme Court had held there was no jurisdiction of an action brought by the recognized representative of the employees when the relief sought was additional1 compensation to individual employees alleged to be due under the terms of the collective agreement. The Supreme Court found no congressional intention “ * * * to open the doors of the federal courts to a potential flood of grievances based upon an employer’s failure to comply with terms of a collective agreement relating to compensation, terms peculiar in the individual benefit which is their subject matter and which, when violated, give a cause of action to the individual employee. * * * ” Enforcement of such rights was to be left to the individual employees.
Here, the employees’ representative, if there is one, is not a party to these actions. The Mine Workers are not here contending that they have a contract with the employers which the employers have violated. Jurisdiction, under § 301 of the Labor Management Relations Act, to adjudicate claims by or against a labor organization representing employees does not extend to the claims of two employees asserting in their own names individual rights to additional compensation under a contract which they claim to be applicable.
Individual rights, individually asserted, though stemming from a collective employment agreement and solely dependent upon it, cannot be enforced under § 301 of the Labor Management Relations Act. If there is substance in the rights asserted by these employees, the rights may be enforced through traditional actions brought in the state courts. There is no federal jurisdiction to enforce them.
Affirmed.
. 29 U.S.C.A. § 216.
. 29 U.S.C.A. § 206.
. 29 U.S.C.A. § 207.
. Sheppard v. Cornelius et al., D.C.S.D.W. Va., 194 F.Supp. 823.
. If there was a violation of § 7 of the Act, and the court determined that the contract rate was the regular rate within the meaning of that Section, the court would not be limited to an award of compensation for the overtime hour's worked. It could adjudicate the entire controversy by requiring payment of the contract rate for the first forty hours worked in each week and thus dispose of the entire controversy. When the court has jurisdiction of a federal claim under § 7 of the Act, it may proceed to adjudicate the closely related nonfederal contract claim for additional compensation during the first forty hours worked in any week. Manosky v. Betklehem-Hingham Shipyard, Inc., 1 Cir., 177 F.2d 529, 534. When there has been- no violation of the Fair Labor Standards Act, however, § 16 of that Act confers no jurisdiction upon the court to award any relief.
. 29 U.S.C.A. § 185.
. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; Textile Workers Union of America v. Cone Mills Corp., 4 Cir., 268 F.2d 920.
. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Petitioner
v.
ANZ SECURITIES, INC., et al.
No. 16-373.
Supreme Court of the United States
Argued April 17, 2017.
Decided June 26, 2017.
Thomas C. Goldstein, Bethesda MD, for petitioner.
Paul D. Clement, Washington, DC, for respondents.
Darren J. Robbins, Joseph D. Daley, Thomas E. Egler, Robbins Geller Rudman & Dowd LLP, San Diego, CA, Thomas C. Goldstein, Kevin K. Russell, Tejinder Singh, Goldstein & Russell, P.C., Bethesda MD, for petitioner.
Victor L. Hou, Jared Gerber, Cleary Gottlieb Steen & Hamilton LLP, New York, NY, Paul D. Clement, Jeffrey M. Harris, Matthew D. Rowen, Kirkland & Ellis LLP, Washington, DC, for respondents.
Justice KENNEDY delivered the opinion of the Court.
The suit giving rise to the case before the Court was filed by a plaintiff who was a member of a putative class in a class action but who later elected to withdraw and proceed in this separate suit, seeking recovery for the same illegalities that were alleged in the class suit. The class-action suit had been filed within the time permitted by statute. Whether the later, separate suit was also timely is the controlling question.
I
A
The Securities Act of 1933 "protects investors by ensuring that companies issuing securities... make a 'full and fair disclosure of information' relevant to a public offering." Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U.S. ----, ----, 135 S.Ct. 1318, 1323, 191 L.Ed.2d 253 (2015) (quoting Pinter v. Dahl, 486 U.S. 622, 646, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) ); see 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq. Companies may offer securities to the public only after filing a registration statement, which must contain information about the company and the security for sale. Omnicare, 575 U.S., at ---- - ----, 135 S.Ct., at 1323. Section 11 of the Securities Act "promotes compliance with these disclosure provisions by giving purchasers a right of action against an issuer or designated individuals," including securities underwriters, for any material misstatements or omissions in a registration statement. Id., at ----, 135 S.Ct., at 1323 ; see 15 U.S.C. § 77k(a).
The Act provides time limits for § 11 suits. These time limits are set forth in a two-sentence section of the Act, § 13. It provides as follows:
"No action shall be maintained to enforce any liability created under [§ 11] unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence.... In no event shall any such action be brought to enforce a liability created under [§ 11] more than three years after the security was bona fide offered to the public...." 15 U.S.C. § 77m.
So there are two time bars in the quoted provision; and the second one, the 3-year bar, is central to this case.
B
Lehman Brothers Holdings Inc. formerly was one of the largest investment banks in the United States. In 2007 and 2008, Lehman raised capital through a number of public securities offerings. Petitioner, California Public Employees' Retirement System (sometimes called CalPERS), is the largest public pension fund in the country. Petitioner purchased securities in some of these Lehman offerings; and it is alleged that respondents, various financial firms, are liable under the Act for their participation as underwriters in the transactions. The separate respondents are listed in an appendix to this opinion.
In September 2008, Lehman filed for bankruptcy. Around the same time, a putative class action concerning Lehman securities was filed against respondents in the United States District Court for the Southern District of New York. The operative complaint raised claims under § 11, alleging that the registration statements for certain of Lehman's 2007 and 2008 securities offerings included material misstatements or omissions. The complaint was filed on behalf of all persons who purchased the identified securities, making petitioner a member of the putative class. Petitioner, however, was not one of the named plaintiffs in the suit. The class action was consolidated with other securities suits against Lehman in a single multidistrict litigation.
In February 2011, petitioner filed a separate complaint against respondents in the United States District Court for the Northern District of California. This suit was filed more than three years after the relevant transactions occurred. The complaint alleged identical securities law violations as the class-action complaint, but the claims were on petitioner's own behalf. The suit was transferred and consolidated with the multidistrict litigation in the Southern District of New York. Soon thereafter, a proposed settlement was reached in the putative class action. Petitioner, apparently convinced it could obtain a more favorable recovery in its separate suit, opted out of the class.
Respondents then moved to dismiss petitioner's individual suit alleging § 11 violations as untimely under the 3-year bar in the second sentence of § 13. Petitioner countered that its individual suit was timely because that 3-year period was tolled during the pendency of the class-action filing. The principal authority cited to support petitioner's argument that the 3-year period was tolled was American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).
The District Court disagreed with petitioner's argument, holding that the 3-year bar in § 13 is not subject to tolling. The Court of Appeals for the Second Circuit affirmed. In agreement with the District Court, the Court of Appeals held that the tolling principle discussed in American Pipe is inapplicable to the 3-year time bar. In re Lehman Brothers Securities and ERISA Litigation, 655 Fed.Appx. 13, 15 (2016). As the Court of Appeals noted, there is disagreement about whether the tolling rule of American Pipe applies to the 3-year time bar in § 13. Compare Joseph v. Wiles, 223 F.3d 1155, 1166-1168 (C.A.10 2000), with Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 792-795 (C.A.6 2016), and Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246-1249 (C.A.11 2016).
The Court of Appeals also rejected petitioner's alternative argument that its individual claims were "essentially 'filed' in the putative class complaint," so that the filing of the class action within three years made the individual claims timely. 655 Fed. Appx., at 15.
This Court granted certiorari. 580 U.S. ---- (2017).
II
The question then is whether § 13 permits the filing of an individual complaint more than three years after the relevant securities offering, when a class-action complaint was timely filed, and the plaintiff filing the individual complaint would have been a member of the class but for opting out of it. The answer turns on the nature and purpose of the 3-year bar and of the tolling rule that petitioner seeks to invoke. Each will be addressed in turn.
A
As the Court explained in CTS Corp. v. Waldburger, 573 U.S. ----, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014), statutory time bars can be divided into two categories: statutes of limitations and statutes of repose. Both "are mechanisms used to limit the temporal extent or duration of liability for tortious acts," but "each has a distinct purpose." Id., at ---- - ----, 134 S.Ct., at 2182.
Statutes of limitations are designed to encourage plaintiffs "to pursue diligent prosecution of known claims." Id., at ----, 134 S.Ct., at 2182-2183 (internal quotation marks omitted). In accord with that objective, limitations periods begin to run "when the cause of action accrues"-that is, "when the plaintiff can file suit and obtain relief." Id., at ----, 134 S.Ct., at 2182 (internal quotation marks omitted). In a personal-injury or property-damage action, for example, more often than not this will be " 'when the injury occurred or was discovered.' " Ibid.
In contrast, statutes of repose are enacted to give more explicit and certain protection to defendants. These statutes "effect a legislative judgment that a defendant should be free from liability after the legislatively determined period of time." Id., at ---- - ----, 134 S.Ct., at 2183 (internal quotation marks omitted). For this reason, statutes of repose begin to run on "the date of the last culpable act or omission of the defendant." Id., at ----, 134 S.Ct., at 2182.
The 3-year time bar in § 13 reflects the legislative objective to give a defendant a complete defense to any suit after a certain period. From the structure of § 13, and the language of its second sentence, it is evident that the 3-year bar is a statute of repose. In fact, this Court has already described the provision as establishing "a period of repose," which " 'impose [s] an outside limit' " on temporal liability. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991).
The statute provides in clear terms that "[i]n no event" shall an action be brought more than three years after the securities offering on which it is based. 15 U.S.C. § 77m. This instruction admits of no exception and on its face creates a fixed bar against future liability. See CTS, supra, at ---- - ----, 134 S.Ct., at 2182-2183 ; cf. United States v. Brockamp, 519 U.S. 347, 350, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (noting that a statute that "sets forth its time limitations in unusually emphatic form... cannot easily be read as containing implicit exceptions"). The statute, furthermore, runs from the defendant's last culpable act (the offering of the securities), not from the accrual of the claim (the plaintiff's discovery of the defect in the registration statement). Under CTS, this point is close to a dispositive indication that the statute is one of repose.
This view is confirmed by the two-sentence structure of § 13. In addition to the 3-year time bar, § 13 contains a 1-year statute of limitations. The limitations statute runs from the time when the plaintiff discovers (or should have discovered) the securities-law violation. The pairing of a shorter statute of limitations and a longer statute of repose is a common feature of statutory time limits. See, e.g., Gabelli v. SEC, 568 U.S. 442, 453, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013) ("[S]tatutes applying a discovery rule... often couple that rule with an absolute provision for repose"). The two periods work together: The discovery rule gives leeway to a plaintiff who has not yet learned of a violation, while the rule of repose protects the defendant from an interminable threat of liability. Cf. Merck & Co. v. Reynolds, 559 U.S. 633, 650, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010) (reasoning that 2-year discovery rule would not "subject defendants to liability for acts taken long ago," because the statute also included an "unqualified bar on actions instituted '5 years after such violation' ").
The history of the 3-year provision also supports its classification as a statute of repose. It is instructive to note that the statute was not enacted in its current form. The original version of the 1933 Securities Act featured a 2-year discovery period and a 10-year outside limit, see § 13, 48 Stat. 84, but Congress changed this framework just one year after its enactment. The discovery period was changed to one year and the outside limit to three years. See Securities Exchange Act of 1934, § 207, 48 Stat. 908. The evident design of the shortened statutory period was to protect defendants' financial security in fast-changing markets by reducing the open period for potential liability.
B
The determination that the 3-year period is a statute of repose is critical in this case, for the question whether a tolling rule applies to a given statutory time bar is one "of statutory intent." Lozano v. Montoya Alvarez, 572 U.S. 1, ----, 134 S.Ct. 1224, 1232, 188 L.Ed.2d 200 (2014). The purpose of a statute of repose is to create "an absolute bar on a defendant's temporal liability," CTS, 573 U.S., at ----, 134 S.Ct., at 2183 (alteration and internal quotation marks omitted); and that purpose informs the assessment of whether, and when, tolling rules may apply.
In light of the purpose of a statute of repose, the provision is in general not subject to tolling. Tolling is permissible only where there is a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances.
For example, if the statute of repose itself contains an express exception, this demonstrates the requisite intent to alter the operation of the statutory period. See 1 C. Corman, Limitation of Actions § 1.1, pp. 4-5 (1991) (Corman); see, e.g., 29 U.S.C. § 1113 (establishing a 6-year statute of repose, but stipulating that, in case of fraud, the 6-year period runs from the plaintiff's discovery of the violation). In contrast, where the legislature enacts a general tolling rule in a different part of the code-e.g., a rule that suspends time limits until the plaintiff reaches the age of majority-courts must analyze the nature and relation of the legislative purpose of each provision to determine which controls. See 2 Corman § 10.2.1, at 108. In keeping with the statute-specific nature of that analysis, courts have reached different conclusions about whether general tolling statutes govern particular periods of repose. Ibid., n. 15.
Of course, not all tolling rules derive from legislative enactments. Some derive from the traditional power of the courts to " 'apply the principles... of equity jurisprudence.' " Young v. United States, 535 U.S. 43, 50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (alteration omitted). The classic example is the doctrine of equitable tolling, which permits a court to pause a statutory time limit "when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action."
Lozano, 572 U.S., at ----, 134 S.Ct., at 1231-1232. Tolling rules of that kind often apply to statutes of limitations based on the presumption that Congress " 'legislate[s] against a background of common-law adjudicatory principles.' " Id., at ----, 134 S.Ct., at 1232.
The purpose and effect of a statute of repose, by contrast, is to override customary tolling rules arising from the equitable powers of courts. By establishing a fixed limit, a statute of repose implements a " 'legislative decisio[n] that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability.' " CTS, 573 U.S., at ----, 134 S.Ct., at 2183. The unqualified nature of that determination supersedes the courts' residual authority and forecloses the extension of the statutory period based on equitable principles. For this reason, the Court repeatedly has stated in broad terms that statutes of repose are not subject to equitable tolling. See, e.g., id., at ---- - ----, 134 S.Ct., at 2183-2184 ; Lampf, Pleva, 501 U.S., at 363, 111 S.Ct. 2773.
C
Petitioner contends that the 3-year provision is subject to tolling based on the rationale and holding in the Court's decision in American Pipe. The language of the 3-year statute does not refer to or impliedly authorize any exceptions for tolling. If American Pipe had itself been grounded in a legislative enactment, perhaps an argument could be made that the enactment expressed a legislative objective to modify the 3-year period. If, however, the tolling decision in American Pipe derived from equity principles, it cannot alter the unconditional language and purpose of the 3-year statute of repose.
In American Pipe, a timely class-action complaint was filed asserting violations of federal antitrust law. 414 U.S., at 540, 94 S.Ct. 756. Class certification was denied because the class was not large enough, see Fed. Rule Civ. Proc. 23(a)(1), and individuals who otherwise would have been members of the class then filed motions to intervene as individual plaintiffs. The motions were denied on the grounds that the applicable 4-year time bar had expired. See 15 U.S.C. § 15b. The Court of Appeals reversed, permitting intervention.
This Court affirmed. It held the individual plaintiffs' motions to intervene were timely because "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class." American Pipe, 414 U.S., at 554, 94 S.Ct. 756. The Court reasoned that this result was consistent "both with the procedures of Rule 23 and with the proper function of the limitations statute" at issue. Id., at 555, 94 S.Ct. 756. First, the tolling furthered "the purposes of litigative efficiency and economy" served by Rule 23. Id., at 556, 94 S.Ct. 756. Without the tolling, "[p]otential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable," which would "breed needless duplication of motions." Id., at 553-554, 94 S.Ct. 756. Second, the tolling was in accord with "the functional operation of a statute of limitations." Id., at 554, 94 S.Ct. 756. By filing a class complaint within the statutory period, the named plaintiff "notifie[d] the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment." Id., at 555, 94 S.Ct. 756.
As this discussion indicates, the source of the tolling rule applied in American Pipe is the judicial power to promote equity, rather than to interpret and enforce statutory provisions. Nothing in the American Pipe opinion suggests that the tolling rule it created was mandated by the text of a statute or federal rule. Nor could it have. The central text at issue in American Pipe was Rule 23, and Rule 23 does not so much as mention the extension or suspension of statutory time bars.
The Court's holding was instead grounded in the traditional equitable powers of the judiciary. The Court described its rule as authorized by the "judicial power to toll statutes of limitations." Id., at 558, 94 S.Ct. 756 ; see also id., at 555, 94 S.Ct. 756 ("the tolling rule we establish here " (emphasis added)). The Court also relied on cases that are paradigm applications of equitable tolling principles, explaining with approval that tolling in one such case was based on "considerations 'deeply rooted in our jurisprudence.' " Id., at 559, 94 S.Ct. 756 (quoting Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959) ; alteration omitted); see also 414 U.S., at 559, 94 S.Ct. 756 (citing Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ). The Court noted too that "bad faith" was not the cause of the District Court's denial of class certification. 414 U.S., at 553, 94 S.Ct. 756 (internal quotation marks omitted).
Perhaps for these reasons, this Court has referred to American Pipe as "equitable tolling." See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, and n. 3, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ; see also Young,supra, at 49, 122 S.Ct. 1036 ; Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 338, n., 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978) (Burger, C.J., concurring) (using American Pipe as an example of "[t]he authority of a federal court, sitting as a chancellor, to toll a statute of limitations on equitable grounds"). It is true, however, that the American Pipe Court did not consider the criteria of the formal doctrine of equitable tolling in any direct manner. It did not analyze, for example, whether the plaintiffs pursued their rights with special care; whether some extraordinary circumstance prevented them from intervening earlier; or whether the defendant engaged in misconduct. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (identifying these considerations); Young, 535 U.S., at 50, 122 S.Ct. 1036 (same). The balance of the Court's reasoning nonetheless reveals a rule based on traditional equitable powers, designed to modify a statutory time bar where its rigid application would create injustice.
D
This analysis shows that the American Pipe tolling rule does not apply to the 3-year bar mandated in § 13. As explained above, the 3-year limit is a statute of repose. See supra, at 2049 - 2050. And the object of a statute of repose, to grant complete peace to defendants, supersedes the application of a tolling rule based in equity. See supra, at 2050 - 2051. No feature of § 13 provides that deviation from its time limit is permissible in a case such as this one. To the contrary, the text, purpose, structure, and history of the statute all disclose the congressional purpose to offer defendants full and final security after three years.
Petitioner raises four counterarguments, but they are not persuasive. First, petitioner contends that this case is indistinguishable from American Pipe itself. If the 3-year bar here cannot be tolled, petitioner reasons, then there was no justification for the American Pipe Court's contrary decision to suspend the time bar in that case. American Pipe, however, is distinguishable. The statute in American Pipe was one of limitations, not of repose; it began to run when " 'the cause of action accrued.' " 414 U.S., at 541, n. 2, 94 S.Ct. 756 (quoting 15 U.S.C. § 15b ). The statute in the instant case, however, is a statute of repose. Consistent with the different purposes embodied in statutes of limitations and statutes of repose, it is reasonable that the former may be tolled by equitable considerations even though the latter in most circumstances may not. See supra, at 2050 - 2051.
Second, petitioner argues that the filing of a class-action complaint within three years fulfills the purposes of a statutory time limit with regard to later filed suits by individual members of the class. That is because, according to petitioner, the class complaint puts a defendant on notice as to the content of the claims against it and the set of potential plaintiffs who might assert those claims. It is true that the American Pipe Court, in permitting tolling, suggested that generic notice satisfied the purposes of the statute of limitations in that case. See 414 U.S., at 554-555, 94 S.Ct. 756. While this was deemed sufficient in balancing the equities to allow tolling under the antitrust statute, it must be noted that here the analysis differs because the purpose of a statute of repose is to give the defendant full protection after a certain time.
If the number and identity of individual suits, where they may be filed, and the litigation strategies they will use are unknown, a defendant cannot calculate its potential liability or set its own plans for litigation with much precision. The initiation of separate individual suits may thus increase a defendant's practical burdens. See, e.g., Cottreau, Note, The Due Process Right To Opt Out of Class Actions, 73 N.Y.U. L. Rev. 480, 486, and n. 29 (1998) ("A defendant's transaction costs are likely to be reduced by having to defend just one action"). The emergence of individual suits, furthermore, may increase a defendant's financial liability; for plaintiffs who opt out have considerable leverage and, as a result, may obtain outsized recoveries. See, e.g., Coffee, Accountability and Competition in Securities Class Actions: Why "Exit" Works Better Than "Voice," 30 Cardozo L. Rev. 407, 417, 432-433 (2008) ; Perino, Class Action Chaos? The Theory of the Core and an Analysis of Opt-Out Rights in Mass Tort Class Actions, 46 Emory L.J. 85, 97 (1997). These uncertainties can put defendants at added risk in conducting business going forward, causing destabilization in markets which react with sensitivity to these matters. By permitting a class action to splinter into individual suits, the application of American Pipe tolling would threaten to alter and expand a defendant's accountability, contradicting the substance of a statute of repose. All this is not to suggest how best to further equity under these circumstances but simply to support the recognition that a statute of repose supersedes a court's equitable balancing powers by setting a fixed time period for claims to end.
Third, petitioner contends that dismissal of its individual suit as untimely would eviscerate its ability to opt out, an ability this Court has indicated should not be disregarded. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). It does not follow, however, from any privilege to opt out that an ensuing suit can be filed without regard to mandatory time limits set by statute.
Fourth, petitioner argues that declining to apply American Pipe tolling to statutes of repose will create inefficiencies. It contends that nonnamed class members will inundate district courts with protective filings. Even if petitioner were correct, of course, this Court "lack[s] the authority to rewrite" the statute of repose or to ignore its plain import. Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. ----, ----, 135 S.Ct. 2158, 2169, 192 L.Ed.2d 208 (2015).
And petitioner's concerns likely are overstated. Petitioner has not offered evidence of any recent influx of protective filings in the Second Circuit, where the rule affirmed here has been the law since 2013. This is not surprising. The very premise of class actions is that "'small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.' " Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Many individual class members may have no interest in protecting their right to litigate on an individual basis. Even assuming that they do, the process is unlikely to be as onerous as petitioner claims. A simple motion to intervene or request to be included as a named plaintiff in the class-action complaint may well suffice. See, e.g., Brief for Washington Legal Foundation as Amicus Curiae 6-11 (describing procedures); Brief for Securities Industry and Financial Markets Association et al. as Amici Curiae 16, 19-20 (same). District courts, furthermore, have ample means and methods to administer their dockets and to ensure that any additional filings proceed in an orderly fashion. Cf. Dietz v. Bouldin, 579 U.S. ----, ----, 136 S.Ct. 1885, 1892, 195 L.Ed.2d 161 (2016) ("[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases").
III
Petitioner makes an alternative argument that does not depend on tolling. Petitioner submits its individual suit was timely in any event. Section 13 provides that an "action" must be "brought" within three years of the relevant securities offering. See 15 U.S.C. § 77m. Petitioner argues that requirement is met here because the filing of the class-action complaint "brought" petitioner's individual "action" within the statutory time period.
This argument rests on the premise that an "action" is "brought" when substantive claims are presented to any court, rather than when a particular complaint is filed in a particular court. The term "action," however, refers to a judicial "proceeding," or perhaps to a "suit"-not to the general content of claims. See Black's Law Dictionary 41 (3d ed. 1933) (defining "action" as, inter alia, "an ordinary proceeding in a court of justice"); see also id., at 43 ("The terms 'action' and'suit' are... nearly, if not entirely, synonymous"). Whether or not petitioner's individual complaint alleged the same securities law violations as the class-action complaint, it defies ordinary understanding to suggest that its filing-in a separate forum, on a separate date, by a separate named party-was the same "action," "proceeding," or "suit."
The limitless nature of petitioner's argument, furthermore, reveals its implausibility. It appears that, in petitioner's view, the bringing of the class action would make any subsequent action raising the same claims timely. Taken to its logical limit, an individual action would be timely even if it were filed decades after the original securities offering-provided a class-action complaint had been filed at some point within the initial 3-year period. Congress would not have intended this result.
Petitioner's argument also fails because it is inconsistent with the reasoning in American Pipe itself. If the filing of a class action made all subsequent actions by putative class members timely, there would be no need for tolling at all. Yet this Court has described American Pipe as creating a tolling rule, necessary to permit the ensuing individual actions to proceed. See, e.g., American Pipe, 414 U.S., at 555, 94 S.Ct. 756 ; Irwin, 498 U.S., at 96, n. 3, 111 S.Ct. 453 ; Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Indeed, the American Pipe Court reasoned that the class-action complaint "was filed with 11 days yet to run" in the statutory period, so the motions for intervention were timely only if filed within 11 days after the denial of class certification. 414 U.S., at 561, 94 S.Ct. 756. If the filing of the class action "brought" any included individual actions, it would have sufficed for the Court to note the date on which the class action was filed and deem all subsequent individual actions proper, regardless when filed.
* * *
Tolling may be of great value to allow injured persons to recover for injuries that, through no fault of their own, they did not discover because the injury or the perpetrator was not evident until the limitations period otherwise would have expired. This is of obvious utility in the securities market, where complex transactions and events can be obscure and difficult for a market participant to analyze or apprehend. In a similar way, tolling as allowed in American Pipe may protect plaintiffs who anticipated their interests would be protected by a class action but later learned that a class suit could not be maintained for reasons outside their control.
The purpose of a statute of repose, on the other hand, is to allow more certainty and reliability. These ends, too, are a necessity in a marketplace where stability and reliance are essential components of valuation and expectation for financial actors. The statute in this case reconciles these different ends by its two-tier structure: a conventional statute of limitations in the first clause and a statute of repose in the second.
The statute of repose transforms the analysis. In a hypothetical case with a different statutory scheme, consisting of a single limitations period without an additional outer limit, a court's equitable power under American Pipe in many cases would authorize the relief petitioner seeks. Here, however, the Court need not consider how equitable considerations should be formulated or balanced, for the mandate of the statute of repose takes the case outside the bounds of the American Pipe rule.
The final analysis, then, is straightforward. The 3-year time bar in § 13 of the Securities Act is a statute of repose. Its purpose and design are to protect defendants against future liability. The statute displaces the traditional power of courts to modify statutory time limits in the name of equity. Because the American Pipe tolling rule is rooted in those equitable powers, it cannot extend the 3-year period. Petitioner's untimely filing of its individual action is ground for dismissal.
The judgment of the Court of Appeals for the Second Circuit is affirmed.
It is so ordered.
APPENDIX
Respondents are the following financial securities firms: ANZ Securities, Inc.; Bankia, S. A.; BBVA Securities Inc.; BMO Capital Markets Corp.; BNP Paribas FS, LLC; BNP Paribas S. A.; BNY Mellon Capital Markets, LLC; CIBC World Markets Corp.; Citigroup Global Markets Inc.; Daiwa Capital Markets Europe Limited; DZ Financial Markets LLC; HSBC Securities (USA) Inc.; HVB Capital Markets, Inc.; ING Financial Markets LLC; Mizuho Securities USA Inc.; M.R. Beal & Company; Muriel Siebert & Co. Inc.; nabSecurities LLC; Natixis Securities Americas LLC; RBC Capital Markets LLC; RBS Securities, Inc.; RBS WCS Holding Company; Santander Investment Securities Inc.; Scotia Capital (USA) Inc.; SG Americas Securities, LLC; Sovereign Securities Corporation LLC; SunTrust Capital Markets, Inc.; Utendahi Capital Partners, L. P.; and Wells Fargo Securities, LLC.
Justice GINSBURG, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
A class complaint was filed against respondents well within the three-year period of repose set out in § 13 of the Securities Act of 1933, 15 U.S.C. § 77m. That complaint informed respondents of the substance of the claims asserted against them and the identities of potential claimants. See American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554-555, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) ; Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Respondents, in other words, received what § 13's repose period was designed to afford them: notice of their potential liability within a fixed time window.
The complaint also "commence[d] the action for all members of the class." American Pipe, 414 U.S., at 550, 94 S.Ct. 756. Thus, when petitioner California Public Employees' Retirement System (CalPERS
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_civproc1
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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 federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
FARMERS STATE BANK OF YUMA, Plaintiff-Appellant, v. Harold HARMON, Individually and as Trustee for the Harold Harmon Family Trust, Defendants-Appellees, Ricky A. Harmon and Randy L. Harmon, Intervenors-Appellees.
No. 84-1156.
United States Court of Appeals, Tenth Circuit.
Nov. 26, 1985.
Dana F. Strout, Denver, Colo, and Steven E. Shinn, Yuma, Colo., for plaintiff-appellant.
Gary Scritsmier of Kelley, Scritsmier, Moore & Byrne, P.C., North Platte, Neb., for defendants-appellees.
John N. Dahle of Grant, McHendrie, Haines and Crouse, Denver, Colo., for intervenors-appellees..
Before McKAY and SETH, Circuit Judges, and BRETT, District Judge.
Honorable Thomas R. Brett, United States District Judge for the District of Oklahoma, sitting by designation.
McKAY, Circuit Judge.
Farmers State Bank of Yuma, Colorado, appeals from the trial court’s order granting summary judgment in favor of Ricky Harmon and Randy Harmon, two of three co-trustees of the Harold Harmon Family Trust. The trial court based its decision on the ground that Harold Harmon, the third co-trustee of the family trust, did not have the authority to bind the trust when he executed certain documents with the Bank. The issue on appeal is whether there exist genuine issues of material fact that make improper the trial court’s grant of summary judgment.
In February of 1979, Harold Harmon and his wife created two trusts. Mr. Harmon was the sole trustee of the first trust, entitled “Harold Harmon Trust”. Mr. Harmon and two of his minor sons, Ricky Harmon and Randy Harmon, were appointed co-trustees of a second trust created the same day, entitled “Harold Harmon Family Trust.” All three acknowledged their acceptance of trusteeship by signing the trust instruments.
Mr. Harmon and two other individuals were the principal shareholders of a corporation known as Alfalfa Products, Inc. On July 29, 1980, Alfalfa Products, Inc. borrowed a large sum of money from the Bank. The Bank required Mr. Harmon to sign a guarantee agreement, pursuant to which Mr. Harmon guaranteed to repay 35 percent of Alfalfa Products, Inc.’s borrowings in the event the corporation defaulted. Mr. Harmon signed the guarantee agreement as “Harold Harmon” and as “Harold Harmon, Trustee” under a typed legend indicating that he was signing on behalf of the Harold Harmon Family Trust.
On the same day, Mr. Harmon himself borrowed money from the Bank and executed a promissory note. Mr. Harmon signed the promissory note “Harold Harmon” and “Harold Harmon, Trustee.” Thereafter, from time to time, Mr. Harmon signed renewal notes covering his personal borrowings, the last renewal note being dated December 30, 1981. That note bore the signatures “Harold Harmon” and “Harold Harmon, Trustee.”
Neither Ricky nor Randy Harmon, the remaining co-trustees of the family trust, knew their father had signed the loan guarantee or the promissory notes on behalf of the family trust. Ricky Harmon had reached his majority before Mr. Harmon entered into any of these transactions with the Bank.
Mr. Harmon failed to make payments pursuant to the guarantee agreement and the promissory note. The Bank sued Mr. Harmon individually and as trustee of the Harold Harmon Family Trust. Ricky and Randy Harmon intervened and moved for summary judgment, arguing that Mr. Harmon had exceeded his authority to bind the family trust. The trial court granted the intervenor’s motion and dismissed the Bank’s claims against the trust.
The Bank argues that summary judgment was improper because genuine issues of fact existed as to: (1) whether Ricky and Randy Harmon lacked capacity to accept their positions as co-trustees; (2) whether Ricky and Randy Harmon accepted their positions as co-trustees; (3) whether the Harold Harmon Family Trust was valid; and (4) whether the Bank had actual knowledge that Mr. Harmon lacked the authority to bind the family trust.
The parties agree that Nebraska law controls the issues in this case.
I. Capacity to Accept Trusteeship
The Bank asserts that summary judgment was improper because a question of fact exists as to whether Ricky and Randy Harmon lacked the legal capacity, because of their minor status, to accept their positions as co-trustees, and whether they accepted those positions. The Bank argues that if Ricky and Randy were without capacity to serve as co-trustees, then, under the terms of the trust, Mr. Harmon succeeded to their powers and had the authority to bind the trust.
Whether Ricky and Randy could accept trusteeship raises a question of law, not a question of fact. It is undisputed that when the family trust was executed, Randy was thirteen years old and Ricky was seventeen years old. Record, vol. 3, at 295.
The leading authorities agree that a minor has the capacity to take and hold property in trust. Restatement (Second) of Trusts § 91 (1977); G. Bogert, The Law of Trusts and Trustees § 127 (2d ed. rev. 1977); Scott on Trusts § 91 (3rd ed. 1967). On the other hand, these authorities reason that a minor lacks the capacity to administer a trust because his contracts and conveyances may be voidable by him when he reaches his majority. See, e.g., Bogert, supra; Scott on Trusts, supra. There is authority to the contrary, however. See, e.g., Levin v. Ritz, 17 Misc. 737, 743-44, 41 N.Y.Supp. 405 (1895).
The Harmon brothers had the capacity to accept their trusteeship at the time of its creation as a matter of law, notwithstanding their minority. There is no provision in the Nebraska Trustees’ Powers Act nor any other Nebraska statute reflecting a legislative policy to disqualify minors from holding title to property in their own name, either personally or as trustees. The only challenge to their acceptance is based on the notion that they lacked legal capacity to accept on the day the trust was created and signed by the brothers. There is no question that they signed the last page of the Harold Harmon Family Trust under the recital “do hereby accept the trusteeship thereunder and agree to be bound by the terms and conditions thereof.” Record, vol. 1, at 87. Even if any doubt remained under Nebraska law as to the minors’ capacity to accept their trusteeship when executed, the Bank stipulated in the pretrial order that “at all relevant times, intervenors, in addition to Harold Harmon, were co-trustees of the Harold Harmon Family Trust____” Record, vol. 3, at 350. This stipulation is binding on the Bank. Morelock v. N.C.R. Corp., 586 F.2d 1096, 1107 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979).
We do not reach the issue of whether minors are capable of administering trusts because at the time Mr. Harmon signed the guarantee agreement and the note on July 29,1980, Ricky Harmon was nineteen years old and had reached his majority under Nebraska law. See Neb.Rev.Stat. § 30-2209(26) (1979). Thus, on the dates of the transactions which are the subject of the Bank’s claims, at least two, if not three, co-trustees of the Harold Harmon Family Trust had the authority to administer the trust. In Nebraska, where there are two trustees to a trust, the powers conferred upon them can properly be exercised only by both trustees, unless otherwise provided by the terms of the trust. Neb.Rev.Stat. § 30-2823(2) (1984 Cum.Supp.). The trust does not so provide.
II. Validity of the Trust
The Bank has attempted to attack the trust as being invalid — in effect, nonexistent. The thrust of its argument is that the trust was a sham because of the alleged total control of Ricky and Randy by their father. The bank makes this argument notwithstanding it’s pretrial stipulation that: “At all relevant times, the Harold Harmon Family Trust and the Harold Harmon Trust were in full force and effect, and had not been amended.” Record, vol. 3, at 350.
We choose not to participate in the Bank’s game of semantics. The unambiguous language speaks for itself. The Bank has admitted the validity of the trust and is bound by its stipulation. Morelock v. N.C.R. Corp., 586 F.2d 1096, 1107 (6th Cir. 1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979).
Additionally, the manner of relief sought by the Bank is consistent with the Bank’s admission that the Harold Harmon Family Trust is valid. Rather than seeking a judgment invalidating the family trust, the Bank sought a judgment against Mr. Harmon “as trustee of the Harold Harmon Family Trust.” Plaintiff has never amended its complaint so as to pursue an alternative remedy. Both the Bank’s complaint and the pretrial stipulations establish that no question of fact exists regarding the validity of the Harold Harmon Family Trust.
III. Actual Knowledge
The Bank claims that a question of fact exists as to whether it had “actual knowledge” of Mr. Harmon’s lack of authority to bind the family trust. Lack of such “actual knowledge,” it argues, would give it protection under Neb.Rev.Stat. § 30-2824 (1984 Cum.Supp.), which provides:
With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction, the existence of trust powers and their proper exercise by the trustee may be assumed without inquiry. The third person is not bound to inquire whether the trustee has power to act or is properly exercising the power; and a third person, without actual knowledge that the trustee is exceeding the trustee’s powers or properly exercising them, is fully protected in dealing with the trustee as if the trustee possessed and properly exercised the powers such trustee purports to exercise____
(Emphasis added.)
Specifically, the Bank argues that a question of fact exists as to whether Mr. Starnes, the Bank’s president, had in his possession and reviewed the Harold Harmon Family Trust before July 29, 1980, the date Mr. Harmon signed the guarantee agreement and the promissory note. However, the trial court “found, concluded and held” that Mr. Starnes had actual knowledge — or certainly notice equivalent to actual knowledge — of Mr. Harmon’s lack of authority to bind the trust. Record, vol. 4, at 6. The record leaves nothing for a fact finder to resolve on this issue.
Mr. Harmon testified that Mr. Starnes had in his possession and reviewed both the Harold Harmon Family Trust and the Harold Harmon Trust before July 29, 1980. Mr. Starnes never directly rebutted this testimony. At one point he equivocated as to whether the time was before or after July 29, 1980, but he gave no positive testimony to that effect. Other evidence unequivocally demonstrates that Mr. Starnes had both trusts in his possession and read them before July 29, 1980. Mr. Starnes testified that: (1) on July 14, 1980, he requested that Mr. Harmon furnish him with copies of both trusts; (2) within a matter of days of his request, he received both trusts; (3) he reviewed the trusts, including the provisions about trust purposes, benefieiaries, trustees, and trust names; (4) he then selected the name “Harold Harmon Family Trust” to be typed on the Alfalfa Products, Inc. loan agreement above the line where the signature “Harold Harmon, Trustee” appears; (5) he prepared the guarantee agreement before July 29, 1980; and (6) he concluded from reading the Harold Harmon Family Trust that Mr. Harmon had the authority to sign the guarantee on behalf of the trust. There is no affirmative evidence in the record to contradict the clear and unequivocal testimony of Mr. Starnes that he had in his possession and reviewed the trusts prior to July 29, 1980.
The Bank further asserts that even if Mr. Starnes read the family trust before July 29, 1980, he did not have a correct subjective understanding that Mr. Harmon did not have authority to bind the family trust and, therefore, did not have “actual knowledge” to that effect. No Nebraska case interprets “actual knowledge” as used in Neb.Rev.Stat. § 30-2824 (1984 Cum. Supp.). However, we do not believe that the Nebraska Supreme Court would require a “correct subjective understanding” under the statute. So long as the charged party has actual knowledge of what the trust says, he is charged with actual knowledge of what it means. The trust is pregnant with the fact that Mr. Harmon and his two sons were co-trustees of the trust. It would be impossible to glance at even the first page without knowing that fact. Under all the evidence in the record, there is no room left for a factual dispute about Mr. Starnes’ actual knowledge regarding the number and identity of the co-trustees.
The Bank cannot gain protection under Neb.Rev.Stat. § 30-2824 simply by asserting that it did not correctly understand the facts or the information it acquired. Merely stating that an issue exists does not prevent the granting of summary judgment. Accordingly, the Bank’s insistence that it never had “actual knowledge” as that term is used in Neb.Rev.Stat. § 30-2824 cannot defeat a motion for summary judgment.
AFFIRMED.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_typeiss
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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 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.
Aljoe POINDEXTER, Appellant, v. FEDERAL BUREAU OF INVESTIGATION.
No. 83-1151.
United States Court of Appeals, District of Columbia Circuit.
Argued March 16, 1984.
Decided June 26, 1984.
As Amended June 26, 1984.
Scalia, Circuit Judge, concurred in part and dissented in part with opinion.
Aljoe Poindexter was on the brief, pro se.
Susan Siegal, Washington, D.C., with whom Steven H. Goldblatt, Washington, D.C., appointed by this Court, and Norman A. Townsend, Alexandria, Va., were on the brief as amicus curiae urging remand to the District Court for a new trial.
Diane M. Kozub, South Orange, N.J., of the Bar of the Supreme Court of New Jersey, pro hac vice by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. At-tys., Washington, D.C., were on the brief, for appellee. Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.
Before EDWARDS and SCALIA, Circuit Judges, and SWYGERT, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Opinion concurring in part and dissenting in part filed by Circuit Judge SCALIA.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1982).
HARRY T. EDWARDS, Circuit Judge:
This appeal arises from a judgment of the District Court in favor of the defendant in an employment discrimination action brought and prosecuted pro se by appellant Aljoe Poindexter. The appellant’s argument for reversal has been supplemented by the briefing and oral argument of counsel from the Appellate Litigation Clinic of Georgetown University Law Center, appearing as amicus curiae on appeal. The appellant and amicus curiae argue that the District Court erred in failing to grant the appellant’s request for appointment of counsel. Because we cannot discern from this record whether counsel should have been appointed for the appellant we reverse and remand for further proceedings.
Background
The appellant, a Black male, was hired by the appellee, the Federal Bureau of Investigation (“FBI”), in 1974. On February 27, 1977, he was promoted to a GS-6 position as a coding clerk or “reader” in the Automation and Research Section, Identification Division of the FBI. His primary responsibility in this position was to review reports coded by other personnel to insure their accuracy.
The undisputed facts indicate that the appellant’s work record in the Automation and Research Section was at best adequate. In each of four annual evaluations between October 1976 and September 1980, the appellant’s performance was rated “satisfactory.” Joint Stipulation of Material Facts No Longer in Dispute (“Joint Stipulation”) at 1-3, reprinted in Amicus Curiae Appendix (“App.”), at 74-76. During this period, the appellant received a number of “unsatisfactory” monthly ratings and was censured on two occasions for having an excessive number of such ratings during a twelve-month period. Id.
On February 27, 1980, the appellant filed a formal Equal Employment Opportunity complaint with the Department of Justice, alleging that the FBI discriminated against Black GS-6 coding clerks in assignments and promotions. The record does not indicate the disposition of this complaint.
The undisputed facts also indicate that during his six years of employment with the FBI prior to the filing of his administrative complaint, the appellant had never been absent without leave or suspended. Joint Stipulation at 4, App. 77. However, on April 14, 1980 — less than two months after filing the administrative complaint— he was charged with fifteen minutes of unauthorized absence’ without leave (“AWOL”) on April 9 for being in the ap-pellee’s cafeteria when he was due at his work station. Id. at 2, App. 75. On September 26, 1980, the appellant was charged with 30 minutes AWOL on September 12, 1980 for leaving work early. Id. On January 22, 1981, the appellant was “censured, placed on probation for 60 days, and suspended for three days pursuant to his third AWOL within a twelve-month period.” Id. at 3, App. 76.
The appellant filed a second administrative complaint on February 6, 1981, alleging acts of reprisal by the FBI following the filing of the first complaint. The administrative disposition of this claim also does not appear in the record.
On May 1, 1981, the appellant filed a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (1976 & Supp. V 1981), charging the FBI with race and sex discrimination in making promotions, and acts of reprisal and harassment. On May 29, 1981, the Department of Justice notified the appellant of his right to apply for appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) (1976). The appellant apparently made this application in an unfiled letter to the court dated July 28, 1981.
As the only significant issue on appeal concerns the trial court’s treatment of the appellant’s motion for appointment of counsel, we will discuss the facts relevant to this issue at some length. In doing so, we are constrained by the incompleteness of the record. Although there is some indication that at one point the trial court did attempt to appoint counsel for the appellant, the record does not indicate the basis for this appointment or even whether the appointment preceded or followed the appellant’s motion.
The earliest transcribed record of the District Court proceeding is a September 17, 1981 status call. According to this record, the attorney “originally appointed” by the court had, at the time of his appointment, indicated his unwillingness to represent the appellant. Transcript of September 17, 1981 Status Call at 3 (Sept. 17, 1981), reprinted in App. 25. Following this attorney’s withdrawal, the trial judge apparently attempted to find a new attorney to represent the appellant. These efforts were unsuccessful because several attorneys who had been contacted “indicated that they could not take a case without doing great hardship to their present schedules.” Id. at 5, App. 27.
The District Court judge then arranged the September 17 status call, and informed the appellant: “I have been unable to find anyone to represent you, and I wanted to call you in together with [the appellee’s attorney]... to suggest to you several routes.” Id. at 3, App. 25. The court first suggested clinical programs and legal services, and then described options available if the appellant believed he could pay for counsel. Id. The following exchange then occurred:
THE COURT: I have asked several attorneys that I know who handle EEO cases, and all of them have indicated to me that their schedules or calendars are such that they cannot take on another case. So that’s where I stand in my efforts to try to find someone to represent you.
So I will be happy to hear anything you might wish to suggest.
Do you believe that you can afford to pay counsel?
MR. POINDEXTER: I think I could manage, providing I can keep my job. THE COURT: Well, of course, that’s something the court cannot control.
MR. POINDEXTER: Oh, I see.
THE COURT: You see, I can’t control that. Certainly not today I can’t control it. You apparently indicated to one of my clerks that you have attempted to get counsel too, but have been unsuccessful. MR. POINDEXTER: Right.
THE COURT: Would you mind — you don’t have to — but would you mind stating why you have been unable to? Has it been financial?
MR. POINDEXTER: No, Ma’am.
THE COURT: It has not been financial? MR. POINDEXTER: No. I have had, including the attorney that was here last time we was here, he is the third, the one to refuse materials I have, and said he didn’t want to mess with it.
Id. at 4-5, App. 26-27. Following this discussion, the court outlined at great length the steps the appellant might take to secure counsel. At the conclusion of the status call the District Court judge explained to the appellant:
... I have, as I said, done my very best, and those lawyers that you know have all said that their schedules just don’t permit, just won’t permit.
This is the type of case that requires a lot of work, and a lot of time, and concentrated effort, and I can understand if an attorney says, “well, my calendar is just too full for me to take something at this time.”
That’s what has happened in this regard ____
.... At any rate, those are the only things I can suggest to you at this time, Mr. Poindexter, and I hope you will be successful.
Id. at 12-13, App. 34-35.
The appellant did tell the court that he could afford counsel, but only providing that he could keep his job. This qualification is significant because, at the time of the September 17 hearing, there was substantial reason to believe that the appellant’s future in. his job was precarious. In a motion two months earlier to enjoin the appellee from taking administrative action against him, the appellant warned the court ■that he was being subjected to acts of reprisal and claimed that recent events suggested that he might be dismissed. Plaintiff’s Motion For Temporary Restraining Order and Preliminary Injunction (July 8, 1981). In a motion submitted the day before the September 17 status call, the appellant informed the court that he was in the process of being dismissed. Plaintiff’s Motion For Temporary Restraining Order and Preliminary Injunction at 2 (Sept. 16, 1981), reprinted in App. 89. This latter motion was discussed at the September 17 status call, at which time the appellee’s counsel told the court that “the agency has recommended that [the appellant] be dismissed.” Transcript of September 17, 1981 Status Call at 8 (Sept. 17, 1981), reprinted in App. 30. After the appellee added that “he is not about to be dismissed imminently,” id., the court scheduled a hearing on the motion for September 24.
On September 21, the appellee filed a brief, opposing the appellant’s motion for equitable relief. This brief again informed the court that the appellee had recommended the appellant’s dismissal and that the appellant already had been suspended for ten days. It also stated that, on September 14, “plaintiff was presented with a letter from the agency advising him that strong consideration was being given to dismissing him.” Defendant’s Opposition to Plaintiff’s Motion For Temporary Restraining Order and Preliminary Injunction at 2 (Sept. 21, 1981).
The September 24 hearing was cancelled at the appellant’s request so that he could continue to search for an attorney. Transcript of November 20, 1981 Status Call at 2 (Nov. 20, 1981), reprinted in App. 38. On that same day, the appellant was dismissed from his job. The record does not indicate that the court was informed of the appellant’s dismissal at that time, or that the appellant reiterated his request for appointment of an attorney.
The parties returned to the court for a status call on November 20, 1981. At this proceeding, the appellant informed the court:
I am still in process of looking [for an attorney]. I have met with Mr. David Lang’s assistant on several occasions, and he and I have been in the process of contacting quite a few people. But it has been to no avail, and I was dismissed on the 24th of September.
And most attorneys are hesitant about taking on a client that is not employed, so I have applied for my unemployment. And I also applied for my retirement fund, and it will be eight weeks today, and I haven’t received any unemployment.
... So my hands have just more or less been tied as far as trying to come up with an attorney.
Id. at 2-3, App. 38-39.- The ensuing discussion focused on what the next step in the litigation should be. After determining that the plaintiff’s motion for equitable relief had been mooted by the dismissal but that the remaining claims were still actionable, the court told the plaintiff that “the only problem is, Mr. Poindexter, we have just got to move forward. Are you willing to move forward on your own?” Id. at 4-5, App. 40-41. The appellant replied: “I certainly am. It seems like that’s the only thing I can do, is move forward on my own.” Id. at 5, App. 41. The court then instructed that discovery should commence and could continue until February 1, 1982.
The record indicates little about the period from November 20, 1981 through January 5, 1982. It appears that no discovery was undertaken and it is clear that the appellant did not secure counsel. In subsequent filings and proceedings the appellant claimed that he was unemployed and could not even afford to take a deposition. Transcript of March 2, 1982 Status Call at 2, 5 (March 2, 1982), reprinted in App. 46, 49; Plaintiff’s Motion For Enlargement of Time in Which to Conduct Discovery (Feb. 10, 1982).
On January 5, the appellant received 13 unemployment compensation checks for the amount of $196 each. App. 129. He consulted an attorney three days later, and on January 20, 1982 signed a fee agreement with her. The appellant agreed to pay a $1300 retainer, and, pursuant to that agreement, paid a first installment of $800. App. 130-32 (copy of fee agreement). One week later, the attorney returned the retainer and withdrew her representation allegedly because she had insufficient time to prepare for discovery. Transcript of March 2, 1982 Status Call at 4 (statement of Aljoe Poindexter), App. 48.
Finding himself once again without counsel, the appellant moved for an extension of time for discovery. After this motion was denied, the appellant repeated the motion on February 10, 1982. The appellant reminded the court that he had been unemployed when discovery commenced and that the receipt of his unemployment compensation checks had been delayed. He concluded that he had “found it virtually impossible to conduct Discovery from November 20, 1981 to January 6, 1982 because of financial reasons and a trip to his hometown.” Plaintiffs Motion For Enlargement of Time in Which to Conduct Discovery at 2 (Feb. 10, 1982).
The appellant’s motion was considered at a status call on March 2, 1982. After the plaintiff explained his financial problems and the court made inquiries about pro-' posed discovery, the following discussion occurred:
THE COURT: Now let me say something to you very clearly, Mr. Poindexter, about depositions. I don’t think any depositions will be as inexpensive as $150. All right?
MR. POINDEXTER: Well, I am prepared.
THE COURT: Well, you know, you came in here with that statement, and I just wanted you to know that I think that’s an unreasonable estimate for deposition. It is very likely... that each deposition could run anywhere from $300 up. I just want you to understand that. All right.
Transcript of March 2, 1982 Status Call at 9-10, App. 53-54. The court then granted the motion for an extension of discovery.
During the discovery period that followed this status call, and at trial, the appellant pursued his claims without counsel. The case was tried from the bench, with the District Court judge ultimately entering judgment in favor of the appellee. The court held that the appellee’s decision not to promote or reassign the appellant was explained by the appellant’s inadequate job performance, and indicated that race was not a factor in this decision. Po-indexter, No. 81-1038, mem. op. at 9, reprinted in App. 71. The court also concluded that the appellant had failed to prove reprisal by a preponderance of the evidence. Id. The appellant now seeks review of this judgment.
Discussion
The appellant’s argument on appeal is that the lower court erred in failing to appoint counsel pursuant to 42 U.S.C. § 2000e-5(f)(l) (1976). The relevant language in this provision is as follows:
Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.
Id. While the provision gives plaintiffs a right to request representation, Hilliard v. Volcker, 659 F.2d 1125, 1129 & n. 26 (D.C.Cir.1981), it does not create a statutory right to have counsel actually appointed. E.g., Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir.1983). The decision to appoint rests in the sound discretion of the trial judge. E.g., id.; Ivey v. Board of Regents, 673 F.2d 266, 269 (9th Cir.1982); Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir.1977).
The statute’s stipulation that requests for appointment be granted “in such circumstances as the court may deem just” offers little direction to lower courts confronted with such requests. Many of our sister Circuits have attempted to fill this void by articulating standards to guide lower courts in the exercise of their discretion. E.g., Jenkins, 721 F.2d at 880; Bradshaw v. Zoological Society, 662 F.2d 1301, 1318 (9th Cir.1981); Caston, 556 F.2d at 1309-10; cf. Nelson v. Redfield Lithograph Printing, 728 F.2d 1003 at 1004 (8th Cir.1984) (articulating test for appointment under 28 U.S.C. § 1915(d) (1982) in a Title VII case). In so doing, these courts have paid heed to the Supreme Court’s instruction that “such discretionary choices are not left to a court’s ‘inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ ” Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975) (quoting United States v. Burr, 25 F.Cas. 30, 35 (C.C.D.Va.1807) (No. 14,692) (Marshall, C.J.)). Such efforts to insure that requests for appointment are resolved in a principled and consistent manner are particularly essential in cases of the sort before us, for “[t]he decision to deny the assistance of an appointed attorney to a layman unschooled in the law in an area as complicated as the civil rights field” frequently leaves the plaintiff with little hope of successfully prosecuting a claim.
This court has not heretofore stated the test for adjudicating requests for appointment of counsel. We do so here because it is necessary for the disposition of this case, and to eliminate uncertainties concerning the law of this Circuit. Our analysis begins with a discussion of the assumptions and goals that underlay Congress’ passage of the attorney appointment provision. This discussion both informs our ensuing delineation of the standards governing requests for appointment and offers general guidance to trial courts exercising the substantial discretion afforded by the statute. We then explain the approach that should be followed in acting on requests for appointment and indicate the range of a trial court’s discretion. In identifying the applicable standards, we have been guided both by the structure and history of Title VII (and the appointment provision in particular), and by the substantial body of case law discussing requests for appointment of counsel. Next, we apply this approach to the case before us and conclude that this case should be remanded for further consideration by the District Court. Finally, because of the unique posture of this litigation, we delineate the procedures that are to be followed by the court on remand.
A.
Although courts have acted on requests for appointment of counsel in numerous Title VII cases, they often have done so with surprisingly little discussion of the congressional judgments that underlie the attorney appointment provision. Some of these cases appear to indulge in speculation regarding the utility of judicial appointment of attorneys, almost without regard to congressional preferences on the subject. Thus, several district court opinions may be found to suggest that if plaintiffs cannot secure representation, at least on a contingency fee basis, their claims most likely border on the frivolous. To adherents of this view, the private bar plays an essential role in filtering out meritless cases, and courts would be wise not to override this function by appointing counsel where none can otherwise be secured. An alternative view reflected in the ease law is that the discretion of the private bar is not an entirely satisfactory means to decide which cases merit the attention of the judiciary. These decisions have recognized that, because it is often difficult to prove discrimination, and because financial risks will be incurred by attorneys representing indigent clients, one cannot assume that only meritless cases will be filtered out. Advocates of this second view might conclude that judicial appointment of attorneys in some cases is essential because of both the individual’s and society’s interest in vindicating the right to pursue a livelihood free from discrimination.
We need not express an opinion as to which of these descriptions better comports with reality, or reflects wiser social policy, for our choice has been dictated by Congress. In the words of the Fifth Circuit: “The clear thrust of the appointment power was to enlist the aid of the district courts in finding lawyers who would take such cases____” White v. United States Pipe & Foundry Co., 646 F.2d 203, 206 (5th Cir.1981). Indeed, the very fact that the appointment provision was passed reveals that Congress intended courts to play a role in securing counsel for Title VII claimants. As the Ninth Circuit has observed:
The only plausible reason for enactment of the provision was Congress’ recognition that some civil rights claimants with meritorious cases would be unable to obtain counsel. The district court’s reasoning would render the statutory provision for appointment of counsel nugatory; the provision for appointment of counsel would be wholly unnecessary if all meritorious claims attracted retained counsel.
Bradshaw v. Zoological Society, 662 F.2d 1301, 1319 (9th Cir.1981). Congress’ belief in the utility of judicial appointment of counsel in Title VII cases is further evidenced by its specific inclusion of such authorization in the Civil Rights Act, when Congress could simply have left plaintiffs to rely on the authority created by 28 U.S.C. § 1915(d) (1982). Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir.1983) (“Viewed against the background of the general authorization to courts to request counsel to represent civil litigants, 28 U.S.C. § 1915(d) (1982), [the attorney appointment provision in the Civil Rights Act of 1964] suggests a special congressional concern with legal representation in Title VII cases.”) (footnote omitted); Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 n. 2 (5th Cir.1975) (“It may be that the federal courts should not be so parsimonous in Title VII suits since Congress, apparently anticipating a special need, has specifically provided that a court may appoint an attorney in these cases....”).
The legislative history of the Civil Rights Act also unmistakably evidences “Congressional recognition of the importance of the appointment of counsel provision.” Bradshaw, 662 F.2d at 1316. “The provision... has been a part of Title VII from the time of its enactment.” Hilliard v. Volcker, 659 F.2d 1125, 1128 n. 24 (D.C.Cir.1981). Senator Humphrey explained that the provision was necessary “[s]ince it is recognized that the maintenance of a suit may impose a great burden on a poor individual complainant.” 110 Cong.Rec. 12,722 (1964). The Senate soundly rejected an amendment to the proposed Act that would have deleted the courts’ authority to appoint attorneys in employment discrimination suits, 110 Cong.Rec. 14,196 (1964), and an amendment that would have specified that a court could not appoint an attorney without the consent of the attorney. 110 Cong.Rec. 14,201 (1964).
Congress’ belief in the importance of attorney appointment in appropriate cases is also apparent in the legislative history of the Equal Employment Opportunity Act of 1972. Although “Congress amended 42 U.S.C. § 2000e-5 extensively, [it] retained the appointment provision in its original language.” Hilliard, 659 F.2d at 1128 n. 24. The House Report observed:
By including this provision in'the bill, the committee emphasizes that the nature of Title VII actions more often than not pits parties of unequal strength and resources against each other. The complainant, who is usually a member of a disadvantaged class, is opposed by an employer who not infrequently is one of the nation’s major producers, and who has at his disposal a vast array of resources and legal talent.
H.R.Rep. No. 238, 92d Cong., 1st Sess. 12 (1971), U.S.Code Cong. & Admin.News 1972, 2137, 2148. The Senate’s debate reflects a similar view. After an amendment denying the EEOC the authority to issue cease-and-desist orders inadvertently removed federal employees from the scope of the attorney appointment provision, an amendment remedying this omission was passed in the Senate by á voice vote. 118 Cong.Rec. 956 (1972). In arguing that the attorney appointment provision should cover federal employees, Senator Javits emphasized that this
is a very important right for the individual... for the individuals involved are not, in the main, high salaried, in that those who would be likely to sue in these equal employment opportunity cases are fairly modest people.
... If the complainant is going to have nothing but a remedy in court, at least let us lock that up in the best way we can____
118 Cong.Rec. 954-55 (1972) (statement of Sen. Javits).
It is thus clear that Title VII’s provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII’s remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill “the role of ‘a private attorney general,’ vindicating a policy ‘of the highest priority.’ ” New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 100 S.Ct. 2024, 2030, 64 L.Ed.2d 723 (1980). See also EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602, 101 S.Ct. 817, 824, 66 L.Ed.2d 762 (1981) (private right of action is “important part of Title VU’s scheme of enforcement”); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978) (plaintiff is “the chosen instrument of Congress” to remedy employment discrimination); Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 94 S.Ct. 1011, 1018, 39 L.Ed.2d 147 (1974) (same); Miller v. Staats, 706 F.2d 336, 340 (D.C.Cir.1983) (same). See generally Coles v. Penny, 531 F.2d 609, 615 (D.C.Cir.1976) (“Title YII is remedial in character and should be liberally construed to achieve its purposes”).
At the same time, it does not appear that Congress sought to ensure appointment of counsel as a matter of course. To the contrary, the statutory language expressly leaves this decision to the discretion of the trial court. Moreover, the legislative history clearly indicates that Congress’ overriding concerns were the hardship that litigation costs would impose on indigent plaintiffs and the need to minimize the impact of resource imbalances between plaintiffs and defendants on the outcome of Title VII litigation. These concerns are, of course, implicated most seriously when a plaintiff cannot afford to hire counsel. For if plaintiffs are capable of securing counsel on their own, they can accomplish the end sought by judicial appointment of counsel without the necessity of judicial involvement with the legal services market.
B.
With the foregoing principles in mind, we turn to the specific approach that should be followed under 42 U.S.C. § 2000e-5(f)(l) pursuant to a request for appointment of counsel. In Hilliard, we rejected the suggestion that courts have a duty to appoint attorneys sua sponte. Hilliard v. Volcker, 659 F.2d 1125, 1127-28 (D.C.Cir.1981). We adhere to that view and note initially that the court’s obligation to consider appointment is triggered only if the plaintiff makes a clear request for invocation of the attorney appointment power. See id. at 1128 (“Title VII imposes a duty on the court to consider an appointment of counsel for a complainant but only upon his application ____”) (footnote omitted); 42 U.S.C. § 2000e-5(f)(l) (1976) (“Upon application by the complainant... the court may appoint an attorney”).
Once the plaintiff has triggered the attorney appointment provision, “courts must give serious consideration” to the plaintiff’s request. Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir.1983). See also Hilliard, 659 F.2d at 1128. To facilitate this consideration, the court should provide some guidance to the plaintiff regarding the factors that it may consider in acting on the motion and the showing that will be expected of the plaintiff. The goal, of course, is to make a sound determination as to whether appointment is appropriate. Achievement of this goal is most likely if the relevant information is before the court.
The trial court’s decision on the request will be overturned only for abuse of discretion. However, we reiterate that “such discretionary choices are not left to a court’s ‘inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ ” Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975) (quoting United States v. Burr, 25 F.Cas. 30, 35 (C.C.D. Va.1807) (No. 14,692) (Marshall, C.J.)). Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition.
The “legal principles” that are relevant to the lower court’s exercise of discretion have been articulated with substantial uniformity by the courts of appeals. Based on the analysis in these cases, and the history and purpose of Title VII and the appointment provision, we believe a. court ought to consider the following factors: (1) the ability of the plaintiff to afford an attorney; (2) the merits of the plaintiff’s case; (3) the efforts of the plaintiff to secure counsel; and (4) the capacity of the plaintiff to present the case adequately without aid of counsel. While these factors ordinarily should be considered by the trial court, this list is not necessarily ex-elusive. See, e.g., Jenkins v. Chemical Bank, 721 F.2d 876, 880 (2d Cir.1983). If the particular facts of a case warrant consideration of additional factors, a court may do so as long “as they are treated in a manner consistent with the policy of the statutory provision.” Bradshaw v. Zoological Society, 662 F.2d 1301, 1318 n. 48 (9th Cir.1981):
The first factor, i.e., plaintiffs ability to afford counsel, normally should serve as the starting point in the trial court’s analysis, largely because the appointment provision is primarily intended to protect plaintiffs with limited economic means. In evaluating the plaintiff’s ability to afford counsel, a court should not insist that a plaintiff be destitute, nor should it demand as substantial a showing as that required to proceed in forma pauperis. Given Congress’ concern about the financial burden resulting from attorneys’ fees, appointment surely should not be refused because of a plaintiff’s income or assets if payment of fees would jeopardize the plaintiff’s ability to maintain the necessities of life.
If a court finds that a plaintiff can afford to hire counsel, this ordinarily will be a dispositive ground for denying the request for appointment. However, it is at least conceivable that even a plaintiff capable of paying an attorney, and asserting a meritorious claim, will be unable to secure representation. If the plaintiff alleges as much, the remedial purposes of Title VII may compel the appointment of counsel. However, before doing so, a court would be wise to look with particular care at both the merits of the case and the diligence of the plaintiff’s search for counsel.
The second factor that a court should consider is the merits of the plaintiff’s case. If a suit has very little prospect of success, the benefit that attorney appointment provides the plaintiff may be offset by the burden of litigation on the judiciary and the defendant, as well as on the appointed attorney. At the same time, the absence of an attorney for the plaintiff may make it difficult for the court to evaluate the merits of the plaintiffs claim in deciding whether appointment is appropriate. The balancing of these considerations is problematic. Finding no satisfactory guidance in the case law or in the language and history of the appointment provision, we will not attempt to articulate a standard that greatly circumscribes the trial court’s discretion. We will, however, indicate at least the range within which the court’s discretion should be exercised: if the plaintiff’s claim appears to be patently frivolous, appointment should be refused; if, on the other hand, the plaintiff appears to have some chance of prevailing, then appointment should not be refused for want of a meritorious claim.
In determining the merits of the plaintiff’s claim, the trial court should consider the information before it and, if necessary, make further inquiries of the parties. Often the district court will have before it the EEOC’s determination of whether the plaintiff's claim is reasonable. If the EEOC has found that there was reasonable cause to believe that plaintiff was the victim of discrimination, this finding establishes a strong but rebuttable presumption that the plaintiff’s case has sufficient merit to justify appointment of counsel. However, “an EEOC determination that no reasonable cause supports the plaintiff’s claim should be approached somewhat differently, for the reason that the plaintiff will be without the aid of counsel in challenging the agency’s finding.” Bradshaw v. Zoological Society, 662 F.2d 1301, 1309 n. 20 (9th Cir.1981). Such a determination, standing alone, is not a sufficient basis for denying appointment of counsel. Neal v. IAM Local Lodge 2386, 722 F.2d 247, 250 (5th Cir.1984); Jenkins v. Chemical Bank, 721 F.2d 876, 880 (2d Cir.1983); Jones v. WFYR Radio
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_appfed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re EUCLID DOAN CO. NATIONAL CITY BANK OF CLEVELAND v. EUCLID DOAN CO. (HARVEY, Intervener).
No. 8018.
Circuit Court of Appeals, Sixth Circuit.
June 9, 1939.
Clan Crawford, of Cleveland, Ohio (Squire, Sanders & Dempsey, H. J. Crawford, Paul J. Bickel, and Frank Harrison, all of Cleveland, Ohio, on the brief), for appellant.
Morris Berick, of Cleveland, Ohio (Hal-le, Harris, Haber & Berick, of Cleveland, Ohio, on the brief), for appellees.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
HICKS, Circuit Judge.
This appeal involves an issue similar to those considered in Commissioner v. H. F. Neighbors Realty Co., 6 Cir., 81 F.2d 173, and in Commissioner v. F. & R. Lazarus & Co., 6 Cir., 101 F.2d 728, namely: The status of the transaction whereby a debtor raised money upon real estate by divesting itself of the fee, but retaining possession under a renewable ninety-nine year lease from the grantee, who as trustee, issued land trust certificates of equitable interests in the property to third parties.
Those were tax cases. Here the controversy is ancillary to a proceeding for the reorganization of the debtor under Sec. 77B of the Bankruptcy Act, 11 U.S.C.A. § 207.
On June 9, 1937, the day after the debt- or’s petition was approved, appellant, successor-trustee to The Guardian Trust Company, filed its ancillary petition in the nature of reclamation alleging that the debtor had defaulted in its payments provided in the lease and praying for an adjudication that the leasehold be terminated and for an injunction against the debtor from disturbing it in its possession of the premises. The debtor alleged in its answer that the whole transaction was intended to secure a loan, by conveyance of title to Guardian, and that if the loan should be paid off, title would revert to the debtor. It denied that the trustee was in possession. The Master found that the transaction was not intended as a sale, but was designed to secure a. loan, for which Guardian took title to the real property as security. The court confirmed these findings and denied relief. Hence this appeal.
The debtor, since 1904, was in the business of owning and leasing contiguous properties in Cleveland. Its income was; derived from rentals, the tenants sometimes paying directly to it and sometimes to; the Euclid 105th Properties Company, a lessee. The buildings, which the debtor constructed, rested partly on land it owned and partly on leased premises, no attempt being made to conform the walls to the property lines.
In 1922 the debtor placed a $2,000,000 first mortgage with Guardian on twelve lots, ten of which are here involved. In 1928 the bonds secured by this mortgage had seven or eight years to run but they were being paid as they became due. The mortgage then amounted to $1,200,000 with a second mortgage of $500,000. Harvey, a large stockholder of the debtor, testified that House, President of Guardian, not a. .witness, urged the debtor to convert the bonds into land trust certificates bearing 5% instead of the 6% then being paid as interest. “When the offer was made by Mr. House, I said we didn’t like to deed our property to The Guardian Trust Company, it looked as if we were parting with title. He said, no, that was just a paper title, that the real title still remained in yourself if you still made these yearly payments.”
Harvey testified further that Goodman of the Properties Company, discussed the proposal with Whitcomb, attorney for Guardian, who also did not testify, and that Whitcomb finally convinced Goodman that it would lessen the interest rate and that “we were not parting with the property, and by these monthly or yearly payments in the course of thirty years would be back in our possession' again.”
George F. Johnson, Vice-President of Guardian, in charge of securities and the only witness for appellant who testified touching the negotiations, said that he never told Harvey that a land trust certificate issue would be the same as a mortgage and never heard any one else do so, but he admitted that he was taking up some unma-tured bond issues and replacing them with a lower rate security and that land trust certificates were popular securities at that time. It was understood that they were non-taxable.
Pursuant to these negotiations, the debt- or, on May 8, 1928, sold $1,375,000 of land trust certificates to Guardian and Union' Trust Company, underwriters, for $1,295,-000. It carried these certificates on its books as a debt. The certificates were afterwards sold to the investing public.. On the same day the debtor executed a warranty deed conveying the ten properties it owned in fee to Guardian for a stated consideration of $100.
On May 24, 1928, Guardian, as trustee, leased the conveyed premises' to the debtor for ninety-nine years, renewable at the option of the debtor. The annual rental was fixed at $68,750; being $50 for each of the 1,375 land trust certificates resold by Guardian at $1,000 each and representing 1/1375 interest in the tracts conveyed. The debtor agreed to pay all the taxes, special assessments, etc., on the premises and to maintain the buildings in repair at its expense. In addition, it agreed to pay the trustee $1,-700 a year for its services, and to pay $6,- . 875 per annum until May 15, 1935, and $33,-750 annually thereafter into a depreciation fund until its accumulations should aggregate $1,000,000. the payments to be invested by the trustee as security for debtor’s performance. If the debtor exercised its option to purchase back the premises or any part thereof, the certificates could be purchased out of the fund at figures ranging from $1,416.25 prior to May 15, 1931, to $1,388.75 after May 15, 1938. The lease provided also that, if the debtor should elect to purchase a particular tract, the value' of the land and buildings remaining subject to the lease .should be equal to, or in excess of, 225% of the value of outstanding trust certificates.
The Properties Company joined in the lease, making itself liable with the debtor for payment of the rents and performance of other covenants and conditions.
Section 4 of Article V of the lease empowered the trustee, in event of default in payment of rents, depreciation fund, etc., over a period of sixty days, to give notice, specifying the default, and at the end of sixty days thereafter, to elect “to declare the term ended and to enter upon the * * premises and take immediate possession of the same together with all buildings and improvements thereon, with or without process of law, forcibly or otherwise, and to expel, remove or put out the Lessee * * * using all force and means that may be necessary for so doing. * * * ”
Clause (a) of Article VI expressly declared that the property was conveyed and the Declaration of Trust executed “in connection with the payment or refinancing of indebtedness of Euclid-Doan Company. * * * ” On the same day, May 24, 1928, Guardian, as trustee, executed its Declaration of Trust dividing the equitable ownership and financial interest in the trust estate into 1,375 indivisible parts and issuing certificates of equitable ownership in evidence thereof. By its provisions, the trustee assumed the exclusive right to control the trust estate, free from all direction by the beneficiaries, to terminate the lease and sell the estate in event of default or to take such other action or exercise such other remedies as it might deem advisable.
In aid of the sale of the certificates Guardian issued a prospectus based upon information supplied by the debtor to the effect that the property was favorably situated in the second largest retail business district in Cleveland and consisted of land appraised at $1,598,790 with buildings appraised at $825,000 and the value of the leasehold appraised at $325,000; that the net income from all the property available for the rental payments of $68,750 was $134,521.23 for the year 1927.
About 1931 the Properties Company defaulted in its payments to the debtor, with consequent default of the debtor'to the trustee. Various arrangements were made to cut down expenses and collect as much as possible for the certificate holders.
On March 29, 1935, about three months after its designation as successor-trustee, appellant addressed a joint letter to the debtor and Properties Company giving notice of the delinquencies in rent, tax ánd depreciation fund payments and proposing an arrangement whereby the Properties Company might continue to collect rents and deposit them but could not check them out without the countersignature of a representative of the trustee. In the early part of 1937 an attempt to revise the lease, and to write down the rentals, failed when the debtor was unable to make repairs on the property.
By May 21, 1937, the debtor’s default for rents and depreciation fund payments was around $400,000. On that date apparently without giving any further notice than that we have recounted, appellant wrote letters to both companies, cancelling the lease, and attempted to enter upon the property and seize control of it. This met with opposition from the debtor; and although the appellant managed to open an office in one of the buildings, it did not gain undisputed possession. During this period, appellant and debtor each gave orders to service employees, and each attempted to collect rents from the tenants, with temporary demoralization to both.
The debtor apparently prevailed, since Harvey testified that from May 21 to June 7, 1937, the collections were highest for a similar period in over three years and that when the books were closed in May there was less delinquency among the tenants by $2,000 than when the books were closed in April.
We are not at liberty to overturn the concurrent findings of the Master and the Judge that the transactions of May, 1928, between the debtor and Guardian were not intended as a sale of the debtor’s property but were intended to secure a loan and that the deed of May 8 executed by the debtor to Guardian was intended to secure repayment of the loan and that the lease of May 24 by Guardian to the debtor was a part of the same transaction and for the same purpose. There is no showing of a clear mistake in the findings.
The Master pointed out that the indicia of such intention were, among others, —(1) the prior debt of the debtor; (2) its financial embarrassment; (3) that Guardian was a money lender; (4) that the original intention of the debtor was to obtain a loan; (5) the inadequacy of the consideration for the deed; (6)’ the continued payment by debtor of the taxes; (7) that re-conveyance was to be made upon repayment of the precise amount of the consideration with interest; (8) payment by debtor in possession of rent equal to interest payable on the certificates; and (9) obligation to pay a definite amount.
We fail to discover in the record any basis for a conclusion different from that arrived at. Equity has inherent jurisdiction to declare a deed to be a mortgage and the Bankruptcy Court is by statute vested with equity jurisdiction. We think the case must be aligned with the Neighbors and Lazarus cases. A restatement of the opinions in these cases would be surplusage.
Finally, it is pressed upon us that by its representations in the prospectus above mentioned that the fee in the property was held by the trustee subject to a lease to the debtor, appellee was estopped from asserting that it was a mortgagor. Certainly this cannot be true as between appellant and appellee, else no deed could ever be declared to be a mortgage, as intended, between the parties.
One may by his conduct exclude himself from asserting his title to lands but only upon clear and satisfactory grounds of both justice and equity. The party asserting estoppel must be able to show that he has been injured by the conduct of the other party and that he had no knowledge or means of knowledge of the truth.
The decree is affirmed and the case remanded for further proceedings consistent herewith.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Floyd BRUCE, Appellant, v. UNITED STATES of America, Appellee.
No. 13952.
United States Court of Appeals Sixth Circuit.
Dec. 17, 1959.
William B. Jones, U. S. Atty., Louisville, Ky., for appellee.
Before McALLISTER, Chief Judge, and MILLER and CECIL, Circuit Judges.
PER CURIAM.
The above cause coming on to be heard on appeal from denial of a motion to vacate sentence and to correct judgment, and the Court being duly advised:
Now therefore, it is ordered, adjudged and decreed that the order of the District Court be, and is hereby affirmed. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405; Woody v. United States, 6 Cir., 258 F.2d 535, affirmed by an equally divided court in 359 U.S. 118, 79 S.Ct. 721, 3 L.Ed.2d 673.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
SPROUL v. FEDERAL RADIO COMMISSION.
No. 5349.
Court of Appeals of the District of Columbia.
Argued Oct. 5, 1931.
Decided Nov. 16, 1931.
Nathan B. Williams and W. D. Jamieson, both of • Washington, D. C., for appellant.
Thad H. Brown, D. M. Patrick, and Fanney Neyman, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDELL, HITZ, and GRONER, Associate Justices..
MARTIN, Chief Justice.
In October, 1928, appellant was licensed by the Radio Commission as owner and operator of radio broadcasting station WMBJ, located at Pittsburgh, Pa. In June, 1930, appellant applied for a renewal license, but the commission upon examination of the application did not reach the decision that pub-lie interest, convenience, or necessity would be served by the granting thereof. The commission notified appellant of this decision, and fixed a time and place for a hearing thereon.
It is provided by section 11 of the Radio Act of 1927, 44 Stat. 1162 (47 USCA § 91), that in ease of such a hearing the commission “shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe.”
By sections 3 and 4 of the same act (47 USCA §§ 83, 84), the commission is given general authority to hold hearings, summon witnesses, and administer oaths; and also to appoint such special counsel, experts, examiners, and other employees as it may from time to time find necessary for the proper performance of its duties.
By the commission’s General Order No. 93, it is provided that in the case of any hearing the testimony may be taken before a quorum of the commission, or before less than a quorum, or before any examiner appointed by the commission, in the discretion of the commission; and that in event the testimony is taken before less than a quorum or before an examiner, the testimony, duly transcribed, shall be reported back to the commission by the person or persons conducting such hearing, together with a written report containing recommendations as to the decision to be made thereon and the facts and grounds upon which such recommendation is based. The party affected may file written exceptions to such report, and if he desires oral argument thereon before the commission he shall accompany the exceptions with a written request for such argument. Upon receipt of such a request the commission may in its discretion fix a time for such oral argument, or it may consider and decide such matter without.argument.
Appellant’s renewal application was heard upon testimony taken by an examiner appointed by the commission, and the testimony was duly reported to the commission by the examiner, together with a recommendation that the application be denied. Appellant filed extended objections and exceptions to the report, toegther with a request for oral argument. The commission, however, considered and decided the ease upon the record, including the testimony and exceptions without hearing oral argument, and denied the application for a renewal license. This appeal was then taken under section 16, Radio Act of 1927, as amended (47 USCA § 96). Appellant contends that the hearing as granted him by the commission was not a lawful hearing; that the commission could not lawfully authorize an examiner to conduct such a hearing; that the examiner in this instance was without authority to administer an oath to the witnesses and accordingly there was no lawful evidence before the commission; that it was contrary to law for the commission to deny appellant’s counsel the right of oral argument; that the action of the commission was a denial of due process of law; and that its decision was arbitrary and capricious and should be reversed.
We do not agree with this conclusion upon the present record. It is disclosed therein that the appellant appeared with his counsel at the hearing before the examiner, and without objection participated therein. He voluntarily testified as a witness in his own behalf, and his testimony shows beyond any doubt that he was not entitled to a renewal of his broadcasting license.
It appears from his testimony that since 1929 appellant has been hopelessly insolvent, with no credit standing, and has been harassed by his creditors, some of them with judgments against him; that his insolvency resulted in the loss of the transmitter used by him in the operation of his station in April, 1930; that notwithstanding the provisions of section 21 of the Radio Act (47 US CA § 101), requiring a permit from the commission as a condition precedent to the construetion of apparatus for the transmission of radio broadcasting, he proceeded to lease and install new apparatus without the approval of the commission; that in September, 1930, the operation of this transmitter was finally discontinued at the instance of a radio inspector of the Department of Commerce, and that it was afterwards repossessed by the lessor for noncompliance with the lease agreement; that at the date of the hearing appellant' was still hopelessly insolvent, having judgments outstanding against him in the sum of about $50,000, with assets of only $500, possessing no broadcasting equipment, and with no ability to assure the commission that another transmitter, if constructed by him, would not in turn be seized by his creditors with resulting discontinuance of the service to the public.
These facts are entitled to the same consideration, appearing as they do from appellant’s own testimony, as if they had been incorporated in appellant’s application for a renewal license. If they had been made part of the application, the commission would have been justified in refusing it thereupon, for they conclusively show that appellant was not then prepared, in case of a renewal, to serve the public interest, convenience, or necessity, by broadcasting. See Technical Radio Laboratory v. Federal Radio Commission, 59 App. D. C. 125, 36 F.(2d) 111, 66 A. L. R. 1355. It was not an abuse of discretion in this ease for the commission, acting under its General Order No. 93, to consider and pass upon the application without hearing oral argument thereon.
Therefore, notwithstanding the various exceptions taken by counsel below, it is manifest that appellant was not entitled to a renewal license, and it would be idle for this court to reverse the ruling to that effect.
The decision appealed from is affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_usc1sect
|
338
|
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 v. MINNEC.
No. 6697.
Circuit Court of Appeals, Seventh Circuit.
April 27, 1939.
Rehearing Denied June 6, 1939.
Arthur H. Jones, of Chicago, Ill., for appellant.
William J. Campbell, U. S. Atty., Thomas B. Hart, and Roy D. Keehn, Jr., Asst. U. S. Atty., all of Chicago, Ill., for the United States.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
MAJOR, Circuit Judge.
Appellant was charged in a sixteen-count indictment with use of the United States mails in furtherance of a scheme to defraud by means of false pretenses, representations and promises in violation of Section 338, Title 18, U.S.C., 18 U.S.C.A. § 338. He was tried by a jury, found guilty upon all counts and from the judgment pronounced thereon this appeal is taken.
While numerous errors are assigned, the ones principally relied upon, and in fact, the only ones argued and discussed by appellant are:
(1) The trial court erred in overruling the appellant’s general and special demurrer to the indictment and each count thereof.
(2) That the court erred in overruling the appellant’s motion asking the court to instruct the jury to return a verdict of not guilty at the close of the appellee’s- evidence, and also at the close of all of the evidence, and in overruling the appellant’s motion for a new trial.
(3) That the court erred in admitting prejudicial and incompetent evidence.
The indictment, as is usual in such cases, describes at great length, the scheme and artifice devised. In substance, it is alleged that the appellant devised a scheme to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises from certain named persons, as well as those unnamed, residing in divers states, by the incorporation of the Cosmopolitan Mutual Benefit Association and the Lincoln National Aid Association, the avowed object of which was for charitable and beneficial purposes; to assist and provide for the sick, needy and disabled members and for the wants of the widows, orphans and dependents; that Certificates were issued to members, conferring benefits, less than promised, by literature and statements made by the appellant and his agents; the manner of soliciting members and of operating the business, the forms of the Certificates and the provisions therein are set forth in detail, and the indictment particularly specified wherein such provisions are misleading and fraudulent; that a large portion of the contributions received from the members was appropriated by the appellant to his own use; that false and deceptive information was conveyed to the public, and particularly to prospective members by means of the circulars, pamphlets, catalogs, folders and letters by which persons were induced to become members; that no medical examination was required and that persons were solicited, who, by reason of advanced age and physical infirmities would be likely to die from certain diseases which precluded them from receiving anything more than nominal benefits; that the appellant, by reason of proxies obtained from members, was in the absolute control and management of the associations and used his power and authority in compelling members and their beneficiaries to settle claims against the associations without regard to the legality of such claims under the terms and conditions of the Certificates, thus enabling him to appropriate to his own use a large portion of the assessments received from members. The alleged fraudulent provisions of the Certificates are set forth in detail, as well as the fraudulent claims and statements made in pamphlets ánd literature prepared and distributed by the appellant as a means of inducing persons to become members and pay assessments. In brief, it is charged that the associations were operated for the benefit of the appellant rather than for the benefit of the members of the associations, and the details in support of that allegation are set forth. Following the description of the scheme and artifice to defraud, each count of the indictment contains a verbatim description or copy of a document or instrument which it is charged the appellant placed, or caused to be placed in the United States mail as a means of executing the alleged scheme and artifice.
That the mails were used in the manner charged is not in dispute. The attack on the indictment is directed at the alleged scheme and the criticism in this respect has to do with a number of allegations, which, it is argued, are indefinite and merely represent the conclusion of the pleader. Authorities are cited to the effect that every necessary allegation in an indictment must be directly and affirmatively alleged, and that charges by implication, intendment or conclusion are insufficient. No doubt, the rule in this respect is well established, but we think it has no application in the instant situation. True, as pointed out by the appellant, there are numerous statements in the indictment, which, if considered by themselves, might properly be termed as conclusions and in some respects, uncertain and indefinite. It can not be held, however, that an indictment which goes into great detail in describing the scheme or artifice to defraud, is bad merely because it contains some statements which may properly be termed as conclusions. In the instant case, such statements may be ignored and yet we find direct and positive averments, which, in our judgment are sufficient to charge a violation of the statute. In fact, it appears the various elements of the scheme are charged with greater prolixity than the circumstances require. While the scheme to defraud is a necessary element of the offense charged, yet the gist of the offense is the use of the mails, and it is only essential that the scheme be charged with such particularity as will enable the accused to know what he may be expected to meet on trial. That the appellant was so informed, there can be no doubt.
We now give consideration to the alleged error of the trial court in its refusal to direct a verdict for the appellant. With the voluminous record before us, containing several hundred exhibits it is somewhat difficult to discuss the evidence in an opinion of reasonable length. In the beginning, we think it is not inappropriate to call attention to the fact that this court recently in United States v. Littlejohn, 7 Cir., 96 F.2d 368, considered and decided a similar case where the facts were almost identical with those of the instant case. The facts, as set forth in our opinion in that case, insofar as they relate to the scheme charged, could very well be incorporated here without doing injustice to either side. Counsel for the appellant, in the oral argument before this court, when inquiry was made as to what distinction could be made between the facts in the two cases, pointed out only one minor distinction, which was of no consequence.
We shall, briefly, we hope, considering the circumstances, relate what we regard as the more material facts and circumstances. Prior to the organization of the associations in question, appellant had been active in the operation of similar associations, among .them being the Bankers Insurance Corporation, The American Peoples League and the American Peoples Mutual Benefit Association, all of which at or. prior to the time of the organization of the associations in question, ceased to do business. On May 29, 1933, appellant and others obtained a charter for the Cosmopolitan under the laws of the State of Indiana, authorizing a society not for pecuniary profit. On February 28, 1934, the appellant obtained a charter under the laws of the State of Delaware for the Lincoln National Aid Association, the objects of which were the same .as those of the Cosmopolitan. .The two associations proceeded thereafter to solicit members and to issue Certificates. Appellant was President of both and acted in that capacity throughout the entire period involved in this case. No person other than he had any voice in the organization, operation, control or management of such .associations. His situation was thus by reason of the fact that when a member .joined the association he was required, by proxy, to authorize the appellant to act for .such member in all matters pertaining to the associations.
Solicitation for memberships, as well as .for representatives to solicit the same, was carried on by means of advertisements in various periodicals and magazines. Salesmen’s kits were mailed to those who evidenced any interest. The advertisements, salesmen’s kits, periodicals, and in fact, all literature mailed 'in connection with the .operation of these associations, appealed to the representatives and to those to whom .'literature was mailed to become members, and solicited all members to become representatives for the associations. No discrimination was used in the selection of representatives. They were authorized to collect $5 initiation fee, and $1 registration fee from each applicant, to be .retained by them'as their commission, and to solicit the application of eligible persons from one to eighty years of age.
The business of both associations was actually transacted in an office in Berwyn, Illinois, with the same personnel and officers. An office of nominal character was maintained in Hammond, Indiana. Appellant was the only salaried officer.
We think it necessary to refer to some of the statements found in the numerous exhibits which the Government relies upon in part as disclosing the fraudulent means employed in inducing persons to become members of the associations and as a part of the scheme with which appellant was charged. In a pamphlet entitled “True Riches,” copyrighted by the appellant, the associations are described as “rendering humanitarian service.” The maximum benefits provided by the Certificate are set forth without any reference to the exceptions and limitations contained in the Certificate. Referring to the result which follows from illness or death of the head of a family, it is stated:
“The perfect tribute any man can give to his family is a lasting guarantee that such tragedy can .never be theirs. It is all so easy, if you only. will. At a cost of only $1 per month, less than the price of one moving picture show per week, you can have the protecting arm of the National Certificate issued by this Association spread over yourself and your family. * * *
“If death .should result from your illness, your family will receive up to $1000 cash — and all for this small $1 per month payment. At such a low cost, you cannot afford to be without National Certificate Protection. Think of it! You could pay on a ‘National Certificate’ over 80 years before the amount put in would equal the benefits derived. Prepare today to face anything the future can offer, unafraid and protected.”
Again:
“The ‘National Certificates’ issued by this Association are simple, plainly worded promises to pay DEFINITE amounts in case of sickness, disability, or death. Just plain, everyday English that you' can understand without the aid of a Philadelphia lawyer. You are the sole judge — no one will call. You study the ‘National Certificate’ in the quiet of your home without any obligation on your part. * * *
“After you have your Certificate in your possession, you can look forward to the time when you no longer are able to carry on your work on account of old age; and then you can retire and live in comfort, while others not so fortunate to make application now are unable to make a living. Just think how wonderful it is to be able to play with your grandchildren on the lawn of your son or daughter, and be able to feel that you are not a burden to them, because today you have signed this statement, how terrible it is for old men and women, who, unable to support themselves, are forced to accept any kind of a nasty job, because they must take anything they can get; for the average employer will not give good jobs to old men and old women. This is not right, but nevertheless is the truth. These people should have protected themselves when they were young.”
In a letter accompanying “True Riches,” is found this statement: “The ‘National Certificate’ is the most complete, all-coverage benefit certificate ever issued. Study the large benefits this Association offers for the small monthly payment of $1.00. Particularly analyze the Maximum Benefits offered by the ‘National Certificate.’ Note that it provides up to $3000 for Travel Accidental Death. Note that it provides up to $2000 for every known Accident. Note that it provides up to $1000 for Natural Death or old age. Note that it provides up to $30.00 weekly for Travel Accidental Disability. Note that it provides up to $20.00 weekly for Accident Disability and up to $10.00 weekly for Sickness.”
In another pamphlet entitled “Mutual Crusaders’ Messenger,” also copyrighted by appellant, we find this statement: “Again, let me call your attention to the fact that you do not have to get sick or die to receive the Benefits of this Association, because when you have an old man on your hands, which is yourself, you should receive benefits that should take care of yourself the rest of your life. So, you see, when you join this Association and you will receive its ‘National Certificate,’ you virtually have made provision to take care of yourself and your loved ones in the event of your sickness, disability, old age, and death. * * * * So you see, Mr. -, the necessity of making application now; because as long as we live, we need food, we need shelter, and we need clothes; and as we get older, disease appears, and we require medical attention. This Association furnishes these Benefits for you, if you will fill this application now, and pay the small monthly payment of one dollar per month, to keep your Membership in good standing.”
In another exhibit we find: “The ‘National Certificate’ is issued by this Association which is Chartered and. Operates 'not for profit under State Laws. It operates under the Mutual Benefit plan, which has over 760 years of successful experience, giving safe sound, and economical protection to its, members at cost. The ‘National Certificate’ will protect you.”
In a letter to members it is said: “This Association issues the very best of protective mutual benefit certificates for the small sum of $1.00 per month.”
In a form letter which accompanied Certificates to new members, it is stated: “Always maintain your ‘National Certificate’ in force. Tell your relatives, friends, and neighbors, how easy it is for them to receive the protection of the ‘National Certificate.’ Thus you will help them to secure for themselves the best protection available for only one dollar ($1.00) per month.” Also, this statement appears: “Today you have no excuse to do without life protection any longer, when, at a cost of less than 3%^ a day, Cosmopolitan Mutual will protect you.” In this letter the protection offered is described as an adequate and “amazing value in life protection.”
Again, we find a Certificate described— “As the Liberty Policy is a masterpiece of protection it is to your interest and the interest of your loved ones to maintain this Policy in force at all times.”
In another pamphlet we find: “Thousands of members everywhere welcome the ‘National Certificate’; hundreds of letters have reached us praising this all-coverage contract. Lawyers, Doctors, Insurance Men, Priests, Ministers, Pastors, Mayors, Sheriffs, Policemen, Carpenters, Mason, Miners, etc., etc., all welcome the ‘National Certificate.’ ”
These statements are merely typical of the many alluring representations made by the appellant in every conceivable form of advertising for the purpose, of course, of inducing persons to become members.
A person desiring to become a member was required to sign an application and to answer certain questions, the most important of which was “Are you in good and vigorous health?” In numerous instances, as disclosed, there was a failure on the part of the applicant to give any answer to this question and in numerous other instances the answer was such as to disclose that no claim to good health was made on the part of the applicant. Little, if any, attention, however, was given to' the answer to this question and regardless of the manner in which it was answered, the applicant invariably was accepted as a member. The failure to answer, or an answer disclosing the applicant was not in good health, was, however, frequently used by the appellant as a means of evading liability. A four-page Certificate, attractive in appearance, was issued to the member. On the first page appears the picture of Abraham Lincoln. (This refers to the Lincoln National Association, but the terms of the Certificate were similar in' each instance.)
In the upper right-hand corner in bold type it is stated:
“Maximum Benefits
$3000.001 $2000.001 Death Benefits $1000.00j
$30.001 $20.001 Weekly Benefits.” $io.ooj
Commencing about the middle of the face of the policy, appears the following (Size and type of print, same as here):
It appears from the evidence that 97% of all people who die in the age group, 40 to 80, die from one of the diseases or causes mentioned in this latter provision of the Certificate, and in the age group, 1 to 80 years, 90%.
On page 2 are found further limitations upon the benefits provided as shown in the schedule of benefits on the face of the Certificate. On page 3, in extremely fine print are found the conditions and by-laws of the Association. They consist of 40 articles or paragraphs. Time and space forbid more than brief reference to the same. Article 5 gives the President the control and management of the business; Article 8 provides that the President may receive 100% of the Expense Fund, 100% of all membership fees, 100% of all registration fees to use for expenses and that the remainder shall become his compensation; Article 9 makes the by-laws a part of the Certificate, and Article 23 provides for a Guarantee Benefit Fund out of which to pay benefits and an Expense Fund, such funds to be created _ from payments received from members. The moneys thus received are to be allocated as follows: First year, 10% to Guarantee Fund and 90% to Expense Fund; Second year, 20% to Guarantee Fund and 80% to the Expense Fund; Third and subsequent years, 30% to the former and 70% to the latter. This article also provides that in the event in any month that contributions are less than liabilities on account of claims payable, then the member shall receive proportionately less than he would be otherwise entitled. It is also provided that if the total net proceeds of one monthly contribution amount to more than is necessary to pay the. claims and obligations, then the balance shall be deposited to the Expense Fund.
It was disclosed that the receipts of the Cosmopolitan for the period from August 1, 1933 to August 31, 1937, were $57,143. 61; for the Lincoln for the same period, $18,153.50, or total receipts by the two Associations of $75,297.11. During the same period, the disbursements amounted to $56,335.67, of which the sum of $4112.45 was paid out by both Associations on all claims, both for death and disability. There was a balance in the bank as of August 31, 1937, of $3,033.62, which leaves an amount of something less than $16,000, the disposition of which is not explained by the record.
One, Edward Fackler, testified on behalf of the Government, as an expert actuary, regarding the Certificates issued by each of the Associations. His testimony was to the effect that the assessments provided to pay for $1000 worth of insurance for a person aged 18, for natural death alone would be 59% deficient; at age 35 the assessments would be 78% deficient and at age 54 they would be 90% deficient. The deficiency of assessments for other classes and ages, according to his testimony, would vary from 46 to 89%, and he gave as his opinion that neither Association could operate successfully.
We have no hesitancy in concluding that the verdict of the jury and judgment of the court were justified — in fact, it is difficult to ascertain how a different conclusion could have been reached. It would serve no useful purpose for us to indulge further in a recitation of the many facts appearing in the record, or a reiteration of those to which we -have already referred, in support of our conclusion. Appellant argues at length in an effort at demonstration and that the certificate constituted a contract between the appellant and the member, and that it was the intention of the appellant to provide for the latter or his beneficiary, benefits according to the terms thereof. It is further argued that the appellant was in a position to pay such benefits and as a matter of fact, made such payments in conformity with the terms of the Certificate, and, therefore, no fraud was involved. After reading the many complicated restrictions and limitations provided in the Certificate, as well as the numerous loopholes which are provided by which the Associations might and did escape liability, we are inclined to think that appellant’s argument in this respect is tenable. In other words, if we are able to understand all the terms and conditions imposed by the Certificate, which we find difficult to do, we think it may be said that the appellant possessed the ability to pay such benefits as promised. The reason we are able to countenance such an argument is that a study of the Certificate convinces us that he came as near to promising nothing as it would be possible for a man to do, skilled in this line of work, as appellant was. A study of the Certificate itself is convincing that it was designed as an entrapment for the ignorant and unwary and operated successfully as a snare and a delusion.
We have heretofore set forth the schedule of maximum benefits as appears on the face of the Certificate, and also the very small italicized print which follows this schedule, and which limits any benefits provided to such an extent that they become practically, nil. It is impossible, with the means at our disposal, to portray the manner in which this particular limitation is embedded in the Certificate. Not only is the type so small as to make it difficult to read with the naked eye, but the reading of it is made more difficult by a blending of mottled colors constituting the background on which these restrictions are printed. The situation thus created must have been for the purpose of keeping a member “in the dark” as to the .restrictions contained therein. Benefits by this clause were reduced to 2% of the maximum benefits in case the member died during the first 90 days the Certificate was in force of any disease or ailment mentioned therein and which, according to medical testimony is the cause of death in 97% of the people. The benefits are increased 2% each 90 days thereafter until the maximum benefit is reached. To make certain, however, that no member escape the devastating effect of this limitation, it was further provided that if any person die with any chronic or undetermined disease or ailment, that the benefit should likewise be 2% of the stated maximum benefit. Further conditions and limitations found on the inside pages of the Certificate, as well as the constitution and by-laws, are equally confusing and deceptive. Instead of containing “plain, everyday F.nglish that you can understand without the aid of a Philadelphia lawyer,” the language employed would tax the ingenuity of layman and lawyer alike.
While we think, as stated, that fraud is apparent from the Certificate itself, there can be no doubt of the fraudulent scheme when the Certificate is taken into consideration with the many false, enticing and alluring statements and promises which were made by the appellant for the purpose of inducing persons to become members. We have heretofore made reference to some of such statements and we need not repeat. It is sufficient to state that the evidence in this respect establishes fraud of a vicious character, the consequences of which resulted in disappointment, hardships and financial loss to those who relied upon and gave credence thereto. While we .recognize. that some latitude is allowable to a person engaged in business in extolling the virtues of that which he offers to the public (sometimes referred to as “puffing”) yet there must be a limit, which in this case was reached far short of the false, misleading and fake promises made by the appellant, or at any rate made under his direction and with his approval as a means of inducing persons to become members of these Associations and thereby obtain their money.
Complaint is also made concerning the admission of evidence. Our attention is called particularly to the testimony of the witness, Fackler, who qualified as an expert actuary and testified as such. The witness was permitted to read or describe various provisions of the Certificate and to express an opinion as to their effect and as to the effect of the Certificate as a whole. We do not think the court committed error in this respect. The Certificates were written in language complicated and confusing, so 'much so that the jury could not have been expected to obtain an intelligent conception of the same without such testimony. In addition, our review of the record convinces us that the charge was so thoroughly established that even if there be error in this respect, it was inconsequential.
The judgment is affirmed.
Brady v. United States, 8 Cir., 24 F.2d 399, 402; Worthington v. United States, 7 Cir., 64 F.2d 936, 938; Hass v. United States, 8 Cir., 93 F.2d 427, 429.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_respond1_3_2
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
ACME LAND & FUR CO., Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 8020.
Circuit Court of Appeals, Fifth Circuit.
June 10, 1936.
John J. Finnorn, of New Orleans, La., for petitioner.
Robert H. Jackson, Asst. Atty. Gen., Harry Marselli, Sewall Key, and Norman D. Keller, Sp. Assts. to Atty. Gen., and Herman Oliphant, Gen. Counsel, Department of Treasury, and De Witt M. Evans, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
The sole question this petition presents for review is whether moneys, paid petitioner out of amounts raised by the inhabitants of the city of New Orleans to reimburse owners of crevasse property for losses from the destruction of wild life thereon, were income subject to taxation.
Petitioner insists that it was not, because (1) the payment was not gain derived from capital or labor, or gain from both capital and labor, or gain through the sale or conversion of capital, but a mere gratuity or gift and therefore not income within the meaning of the statute. (2) It was tax-exempt because paid to it by the state.
The Board, in a carefully considered opinion, examining and rejecting these contentions, 31 B.T.A. 582, has set out clearly and fully the facts which give rise to the question. 'We need only say that the levee was broken and the crevasse was made because it seemed necessary to do so to prevent the city of New Orleans from becoming inundated, and that its making was authorized after and upon the understanding that provision would be made by the inhabitants of that city to compensate those injured for their benefit by its making. Under a constitutional amendment authorizing bonds to be issued payable by and chárgeable against the property of the citizens of New Orleans, funds were realized out of which the state of Louisiana, as intermediary, caused the sums in question to be paid to petitioner. The first thing to be noted here is that the state of Louisiana has not, and never has had, a direct financial concern in the matter. It has acted throughout as intermediary to see that justice was done by the citizens of New Orleans benefited by the crevasse, and therefore justly obligated to owners of crevasse property injured by it.
The second point to be noted is that though if the constitutional amendment had not carried, and the bonds had not been issued, petitioner might not have been able to compel payment, there was a definite, a clear understanding between the crevasse owners and the citizens of New Orleans carrying an obligation, if not a legal one, certainly one sounding in justice and equity, that their losses should be repaid by those for whose sake they had been borne. Whatever the legal status of this promise before it was carried out, after it was and the money had become available to petitioner, it was received by it in no sense as a gift or gratuity, but as the discharge of a valid, if unenforceable, obligation arising out of the situation and its recognition by agreement, and is to be accounted for like any 'other gain through the sale or conversion of capital would be. United States v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215; City of Houston v. Stewart, 99 Tex. 67, 87 S.W. 663, 665. In the last-cited case the Supreme Court of Texas held that refunding certificates, issued by all the citizens of Houston to repay some who had been compelled to bear the whole cost of paving under a plan afterwards abandoned, were just and enforceable obligations. It said: “It was within the power of the Legislature to authorize the city to make an equitable adjustment of these matters so as to equalize the burden upon the property of its citizens.” Cf. Marine Transportation Co. v. Commissioner (C.C.A.) 77 F.(2d) 177; Flynn v. Commissioner (C.C.A.) 77 F.(2d) 180; Texas & P. R. R. Co. v. United States, 286 U.S. 285, 52 S.Ct. 528, 76 L.Ed. 1108.
Not a single element requisite in a gift was present. Every element of a quid pro quo was. Not only is there present the almost irrebutable presumption that a state would not make a gift of public moneys to a private corporation, but every fact here negatives both that intention and that result.
There is no substance either, in the other point, that the payment was tax-exempt because made to petitioner by the state. The tax upon these moneys was in no sense a levy upon “instrumentalities, means or operations whereby the State exerts the governmental powers belonging to it.” The imposition of the tax will not, it cannot, in any way burden the state. The amounts were paid by the citizens of New Orleans under an agreement they made. They are certainly no more tax-exempt than amounts paid in or as the result of condemnation proceedings. It is well settled that these are not exempt where the taxpayer, under the special statute applicable to them, does not use them to purchase other similar property to take the place of that sold. Fullilove v. United States (C.C. A.) 71 F.(2d) 852.
The order of the Board is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO), LOCAL 1904, AFGE (AFL-CIO), LOCAL 1498, AFGE (AFL-CIO), et al., Appellants, v. Stanley R. RESOR, Secretary of the Army, et al.
No. 18952.
United States Court of Appeals, Third Circuit.
Argued March 5, 1971.
Decided May 24, 1971.
Joseph Meehan, Long Branch, N. J., for appellants.
James C. Hair, Jr., Dept. of Justice, Washington, D. C., for appellees.
Before HASTIE, Chief Judge, and ADAMS and GIBBONS, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
This case concerns the application of the doctrine of exhaustion of administrative remedies to a suit challenging demotions and discharges by a governmental agency.
The plaintiffs are civilians employed by the United States Army Electronics Command (ECOM) at Fort Monmouth, New Jersey and Philadelphia, Pennsylvania and their union, the American Federation of Government Employees (AFL-CIO). Early in March, 1970, ECOM decided to reduce the number of its employees at Fort Monmouth and Philadelphia. Pursuant to such decision, ECOM notified approximately 4,000 employees that in May, 1970 the number of civilians employed by ECOM would be substantially reduced. In May, 1970, the individual plaintiffs and the union filed a complaint in the District Court for the District of New Jersey seeking preliminary and mandatory injunctions to prevent the discharges and demotions contemplated by ECOM. The plaintiffs charged that various statutes, civil service regulations, army regulations, and executive orders would be violated by the proposed reduction in the number of government employees working for ECOM, and by the substitution for them of military personnel and independent contractors.
The primary responsibility for formulating and enforcing standards relating to the release and demotion of government employees lies with the Civil Service Commission. 5 U.S.C.A. § 3502(a); (b). Pursuant to the authority granted by Congress, the Civil Service Commission requires that an employee before being released or demoted must be notified of such action “at least thirty full days, but not more than ninety full days before the effective date” of his separation or change in status. 5 C.F.R. § 351.801-807. After receiving notice of the proposed action, the employee may appeal to. the Civil Service Commission. 5 C.F.R. § 351.901. If the affected employee is dissatisfied with the initial Commission action, he may appeal to the Board of Appeals and Review, 5 C.F.R. § 772.307. Finally, an employee may petition the Civil Service Commissioners to reopen and reconsider the decision of the Board of Appeals and Review. 5 C.F.R. § 772.308.
Pursuant to the congressional direction of 5 U.S.C.A. § 3502(a), the Civil Service Commission has provided regulations controlling the procedures by which the government may reduce its civilian work force. These regulations provide criteria for assigning relative retention standing to individual employees and for the establishment of competitive areas within which the assigned retention standing operate to regulate the order for dismissing employees. 5 C.F.R. Part 351.
The District Court did not err in declining to decide the substantive allegations made by the plaintiffs because, although administrative remedies have been pursued by all the individual plaintiffs, the administrative procedures have not been exhausted. The general rule regarding the requirement of exhaustion of remedies is clear — when Congress has provided an administrative procedure which is capable of resolving a controversy such procedure must be utilized. It is only after the final administrative decision that the aggrieved parties may invoke the jurisdiction of the courts, e. g. Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Hills v. Eisenhart, 256 F.2d 609 (9th Cir. 1958); Burns v. McCrary, 229 F.2d 286 (2nd Cir. 1956). For the courts to act prematurely, prior to the final decision of the appropriate administrative agency, would raise a serious question regarding the doctrine of the separation of powers, and in any event would violate a congressional decision that the present controversy be initially considered by the Civil Service Commission.
As explained by the Supreme Court in Aircraft & Diesel Corp.,
“The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, * * *” 331 U.S. at 767, 67 S.Ct. at 1500.
To be sure, as with most general rules of decision, there are exceptions. Thus, if the prescribed administrative procedure is clearly shown to be inadequate to prevent irreparable injury, or when there is a clear and unambiguous statutory violation, then a court need not defer decision until the conclusion of the administrative inquiry. Aircraft & Diesel Corp., supra, at 773, 67 S.Ct. 1493; Fitzpatrick v. Snyder, 220 F.2d 522, 525 (1st Cir. 1955), cert. denied 349 U.S. 946, 75 S.Ct. 875, 99 L.Ed. 1272; Wettre v. Hague, 168 F.2d 825 (1st Cir. 1952). Shargel v. Hollis, 120 F.Supp. 814 (S.D.N.Y.1954); Reeber v. Rossell, 91 F.Supp. 108 (S.D.N.Y.1950).
The plaintiffs contend that their complaint presents allegations sufficient to justify the application of this exception to the exhaustion of remedies doctrine. However, the exception is an extraordinarily narrow one, and whether the plaintiffs may successfully invoke it is within the discretion of the district court. Wettre v. Hague, supra,, 168 F.2d at 826. Before the district court’s discretion may be exercised, it must be shown that the alleged violation “is patently at variance” with one of the plaintiffs’ rights. Fitzpatrick v. Snyder, supra, 220 F.2d at 526. As stated by the District Court plaintiffs’ allegations have not set forth the existence of irreparable harm nor have they asserted unambiguous statutory or constitutional violation which would justify a departure from the congressional mandate requiring civil service disputes to be presented initially to the Civil Service Commission.
Plaintiffs place heavy reliance upon Lodge 1858 v. Paine, 436 F.2d 882 (D.C. Cir. 1970) (per Judge Robinson, Judge Tamm concurring in result) as authority for their contention that administrative remedies need not be exhausted in this case. In Lodge 1858, however, Judge Robinson made it clear that the exhaustion of remedies doctrine was not at issue, because prior to the court’s de-cisión administrative remedies had been completely exhausted. 436 F.2d at 897. Thus Lodge 1858 is not support for plaintiffs’ position regarding exhaustion of administrative remedies.
The plaintiffs also alleged in their complaint that they have a right to inspect and copy certain employees files, denominated “retention lists.” Since the Civil Service Commission apparently is not empowered to provide the relief sought by the plaintiffs in this regard, the exhaustion of remedies doctrine is inapplicable to such portion of the complaint.
Accordingly, we affirm the District Court’s decision to defer hearing the portion of the complaint which raises issues cognizable by the Civil Service Commission, and remand for a hearing on the merits of the portion of the complaint regarding the inspection and copying of records.
. Judge Robinson stated:
“Resort to tlie courts must ordinarily be postponed until administrative remedies available for rectification of tile errors complained of have been exhausted. And the court, as a general rule, must stay its band in reduction in force controversies until administrative resolution of the matters in issue in a proceeding efficacious to that end.” 436 F.2d 882, at 896.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_casetyp1_1-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America v. James JONES, Jr., Appellant.
No. 73-2102.
United States Court of Appeals, District of Columbia Circuit.
Argued March 3, 1975.
Decided Aug. 8, 1975.
Fred Warren Bennett, Washington, D. C. (appointed by this court), for appellant.
Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Robert S. Tignor, Asst. U. S. Attys., were on the brief, for appellee.
Before RICHARD T. RIVES, Senior Circuit Judge for the Fifth Circuit, and WRIGHT and McGOWAN, Circuit Judges.
Sitting by designation pursuant to Title 28, U.S.Code § 294(d).
McGOWAN, Circuit Judge:
Appellant stands convicted of armed robbery, 22 D.C.Code §§ 2901, 3202, and assault with a deadly weapon, 22 D.C. Code § 502. In his initial brief, appellant challenged those convictions on the grounds that (1) they are based on identification evidence derived from an improperly suggestive confrontation at the scene of the crime, (2) they are in any case based on insufficient evidence, and (3) they follow upon a prejudicial error by the district judge in giving a supplemental instruction to the jury while appellant was absent from the courtroom. In the course of oral argument, a fourth issue was identified by the court, as to which counsel was permitted to file a supplemental memorandum. That had to do with the question, then pending before the court en banc, of the applicability of 14 D.C.Code § 305, mandating impeachment by prior conviction, to trials of D.C.Code offenses in the District Court. Finding no merit in any of these matters, we affirm.
I
At approximately noon on March 3, 1972, an armed robbery occurred at the Home Federal Savings and Loan Association at Georgia and Alaska Avenues, N. W., Washington, P. C. According to one of the bank’s tellers, a Mrs. Waugh, the robbery was committed by four Negro males whose faces were hidden by ski masks. She and the other occupants of the bank were forced to lie face down on the floor while the robbery was in progress. They thus had little or no opportunity to observe the intruders, and did not subsequently identify appellant as one of them.
At the time of the robbery a special police officer by the name of Mr. Furr was working in a liquor store directly adjacent to the bank. He was alerted by a customer that the robbery was in progress. Gun in hand, he left the store and approached the entrance of the bank. He saw two men outside the bank and two other men in its doorway. When he saw that one of them was also armed, he jumped back. There was an exchange of shots, in which Furr was wounded in the arm. Running back through the liquor store and out its back door, Furr caught sight of one of the robbers escaping down an alley which led from Kalmia Street (behihd the bank) to Juniper Street. He later found a gun, a mask, and gloves in that alley. However, he did not positively identify appellant as one of the four men he had seen.
Chris Jackson, a 15-year old student, was sitting in his house on Kalmia Street, when he heard the gunfire. Rushing to the window at the back of his house, he observed four men running down the same alley that Furr had seen one of the robbers enter. He saw only the legs of the first man. The second and third carried what appeared to him to be money bags, from which bills were falling as the men ran. The fourth man wore a white trench coat and carried a gun. Police later found a number of bills at the spot Jackson directed them to. Jackson also was unable later to identify appellant as one of the men in the alley.
The one witness who did positively identify appellant, and around whom most of this controversy revolves, was Lucille Berg. As the robbery was taking place, she and a friend, Miriam Shuman, were on their way by car to lunch at Hofberg’s Restaurant, located at Georgia and Alaska Avenues across from the bank. As she turned the car onto Kalmia Street, Mrs. Berg heard a gunshot, slowed the car, and looked over her shoulder out the rear window. She saw a man kneeling with a gun in his hand. This, it was later established, was Furr. She also saw two other men run from the direction of the bank and across Kalmia Street behind her. A few seconds later two more men ran across the street. One of the second pair was dressed in a white trench coat and carried a gun in one hand and what looked like a money sack in the other. Having crossed Kalmia Street, all four men turned down an alley on the other side.
Mrs. Berg was familiar with the area and knew where the alley came out on Juniper Street. She drove around the block onto that street and there saw the four men get into two cars, a green Volkswagen and a red car that she described to police as “foreign with a slant back.” The man in the white trench coat was standing by the right front fender of the red car. Mrs. Berg observed his face, which by this time was unmasked, as close as 10 — 15 feet. She noted that he wore a beard or goatee and a short bush haircut.
On their way back to the bank, where the two women intended to report their observations to the police, the red car pulled up behind them at a stop sign. Mrs. Berg noted the numbers 868 on the car’s license plate. She also observed that the ear turned right from the stop sign onto Alaska Avenue and headed toward 16th Street. All this she and Mrs. Shuman (who corroborated her testimony throughout) reported to the police and F.B.I. agents at the bank.
At 12:05 P.M. Officers Acton and Sweeney of the Metropolitan Police Department were cruising in the 3600 block of 16th Street, N.W. They received a radio lookout for two automobiles, a green VW and a second car, red in color with a “swooped type roof” and a license plate which bore the numbers 868. As they approached 16th Street and Colorado Avenue, they saw a green VW turn west onto Colorado Avenue. They then saw a red Pinto travelling south on 16th Street at an excessive rate of speed. The numbers 868 appeared on its license plate. Before they could reach the speeding car it was stopped by another officer, one Logan, driving a separate scout car. The Pinto’s two occupants, one Gary Frazier, who was at the wheel, and appellant, who was in the passenger seat, were placed under arrest. Neither of the occupants wore a white trench coat, and nothing of an incriminating kind was found in the car. The suspects were taken first to the 10th Precinct for initial questioning and then to the bank where the robbery had taken place, arriving there about forty minutes after the arrest was made on 16th Street. Appellant was transported by the police. Frazier, at his own request and accompanied by Officer Acton, was permitted to drive the Pinto, first to the Precinct and then to the bank, where he parked it a short distance away.
Mrs. Berg and Mrs. Shuman had by this time belatedly settled in to lunch at Hofberg’s. F.B.I. Agent Buscher, to whom they had first given their account of the fleeing robbers, now interrupted them to ask if they would return to the bank to “try to identify some suspects.” They were apparently also told that a car had been taken into custody. On their way back to the bank, Mrs. Berg saw the parked Pinto and remarked (apparently spontaneously) that this was the same car in which she had seen the robbers escaping. Upon returning to the bank, Mrs. Berg and Mrs. Shuman were kept apart from the others present and were taken to the rear of the bank. The two suspects were brought into their view. In Mrs. Berg’s words, “[t]hey were just standing and talking in the vice-president’s area or the manager's area and we stood back and looked at them, one at a time.” Tr. 74. Mrs. Berg positively identified the appellant as the man who had been wearing the white trench coat. She was unable to identify the second man, but insisted that she knew appellant by his face. Mrs. Shuman also identified appellant, but on a more tentative, “look-alike” basis.
These identifications of appellant in the bank were testified to at trial by Mrs. Berg and Mrs. Shuman themselves, and also by F.B.I. Agent Buscher. Mrs. Berg made an in-court identification as well. It is this in-court identification and testimony as to on-the-scene identifications that appellant sought unsuccessfully to suppress.
II
Appellant’s suppression claim is based on the presence of the red Pinto outside the bank. Assertedly, this circumstance was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 301—02, 87 S.Ct. 1967, 1972, 18 L.Ed. 1199 (1967). If that were so, evidence of the identifications made in the bank would be inadmissible, and a hearing would be required to determine whether even the in-court identifications by the two women could be admitted as having an independent source. Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1237 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). But we see no due process violation in the confrontations that took place.
This court has a number of times applied the principles of Stovall and Clemons to so-called “show-ups” of the suspects of a crime near the place and time of its commission. Following the command of those cases that we look to the totality of circumstances which may justify or condemn such witness confrontations, we have held that on-the-scene confrontations are to be permitted “absent special elements of unfairness.” Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284 (1969), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); United States v. Perry, 145 U.S.App.D.C. 364, 449 F.2d 1026, 1038 (1971); United States v. Hines, 145 U.S.App.D.C. 249, 455 F.2d 1317, 1328 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972).
Undoubtedly, there was a degree of suggestiveness present in the confrontation in this case. Although there is contradictory testimony on the point, it appears that Mrs. Berg and Mrs. Shuman were in effect informed, when they were summoned from Hofberg’s Restaurant, that the suspects had been seized in a car meeting the description they had given. They certainly knew that the suspects had been seized in the car parked outside the bank. The classic dangers of misidentification in on-the-scene witness confrontations were present, not the least of them the pressure on Mrs. Berg and Mrs. Shuman to prove their information accurate and thereby justify the actions taken by the police in reliance on it.
But we have not permitted speedy, on-the-scene witness confrontations because they were not suggestive. On the contrary, we have recognized from the beginning that “confrontations in which a single suspect is viewed in the custody of the police are highly suggestive.” Russell v. United States, supra, 408 F.2d at 1284 (emphasis added). We have permitted them nonetheless because we have considered their dangers to be surpassed by their value in terms of the greater accuracy of witnesses’ recollections when they are fresh and in terms of the benefit to society and suspects alike from having crimes quickly resolved. Appellant has shown us no “special element of unfairness” that would upset that calculation in this case.
We do not think the presence of the car necessitates reversal. After all, a suspect is likely to be found with some incriminating article — typically clothing — or he would not be a suspect. In other respects the confrontation was carefully conducted and, indeed, seems less objectionable than others that have passed muster. Appellant was not wearing handcuffs; nor was he behind bars or subject to any other suggestive restraint. Compare Russell v. United States, supra. He was not clothed in the way that the witnesses had seen the robbers earlier. The identifications seem generally reliable, Mrs. Berg’s in particular. She had seen appellant several times, from as close as ten feet, from the relative safety of her car, and with the specific purpose of later identifying him. She recognized him by his face, rather than by his general appearance or build. She had accurately described his beard and haircut, as well as the license plate numbers on the car he was riding in, before she ever saw him or his car back at the bank. Appellant’s case for misidentification is thus not a strong one.
Some discussion is merited of an aspect of the Stovall case which has not loomed large in our previous “show-up” cases, but which appellant brings to our attention in this one. Stovall condemned confrontations that were “unnecessarily suggestive,” thus implying a duty on the part of the police to minimize suggestiveness, and a duty on the part of the courts to exclude evidence derived from a witness confrontation, even if we think it on the whole a reliable one, if it could have been more reliable. See also Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (declining to apply this aspect of Stovall retroactively). Appellant’s argument is that it was unnecessary to have the red Pinto parked outside the bank.
The car was not where it was, however, at the insistence of the police, but at the request of appellant’s companion, Frazier. There is no suggestion that the police deliberately planned to place the car where it could serve a suggestive purpose. To be sure, the police could have prevented Frazier from parking where he did, but in doing so would have shown extraordinary presence of mind and attentiveness to an interest of the suspects which even the latter themselves did not perceive. We could not require the police to take such scrupulous care, all the while urging them to act quickly, unless their failure to do so resulted in extreme prejudice, which, as we have said, it did not in this case.
Ill
Appellant’s second challenge is to the trial judge’s failure to acquit him on the ground of insufficient evidence. He argues the point separately with respect to his two convictions.
As to the first, that for armed robbery, he concedes that the evidence was sufficient to prove that he was the man whom Mrs. Berg and Mrs. Shuman (and also Jackson) saw fleeing the scene of the robbery in a white trench coat. What he denies is that the evidence showed that that man was also among those who took part in the robbery.
It is true that neither Waugh, who was inside the bank, nor Furr, who was just outside it, testified to their having seen a man in a white trench coat. Jackson saw the man some time later, and Mrs. Berg and Mrs. Shuman could only say that they had seen him come from the direction of the bank. Waugh was face down on the floor, however, and Furr was being shot at, so that their failure to recall seeing such a man in or coming out of the bank is certainly not inconsistent with there having been one.
Waugh and Furr were each sure that they saw four men. Mrs. Berg and Mrs. Shuman also saw four men, one of them in a white trench coat, and this must have been only moments later. It strains credulity to suggest, as appellant does, that these were not the same four men. The jury was certainly free to reject the suggestion, especially in the absence of any explanation of where, in those few moments, any of the first four men could have gone to, or their replacements come from. »
As for appellant’s other conviction, if the evidence was sufficient for the jury to conclude that appellant was among those who entered and robbed the bank, it was also sufficient to support appellant’s conviction for the deadly weapon assault upon Furr. Appellant’s contention is that “there was no evidence appellant fired the pistol at Lewis Furr.” In fact the man in the white trench coat was the only one whom the witnesses recalled as having a gun. But the jurors need not have so found. They were properly instructed that aiding and abetting the assault would make appellant liable as a principal, and their conclusion that he was among the bank robbers was itself sufficient to establish that he did aid and abet the assault.
It is the settled rule that one who commits a crime is also guilty as an accessory of any other crimes occurring as the “natural and probable consequences” of the crime he himself commits. See, e. g., United States v. Clayborne, 166 U.S.App.D.C. 140, 509 F.2d 473 (1974); In re Reeder, 264 A.2d 893 (D.C.App.1970); W. Clark & W. Marshall, Law of Crimes, 529 (7th Ed. 1967). If there is a more natural and probable consequence of armed robbery than that the arms will be used and someone injured, we do not know what it is. Since he carried a gun, even if he did not use it, appellant is not in a strong position to raise the primary objection to the “natural and probable consequences” rule — that it imputes guilt for a crime for which the necessary mental state may be lacking. Cf. United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.) (accomplice liability has “nothing whatever to do with the probability that the forbidden result will follow upon the accessory’s conduct”); W. LaFave & A. Scott, Handbook on Criminal Law 515 — 17 (1972) (disapproving the rule as “inconsistent with our more fundamental principles of criminal law”).
IV
Appellant’s third challenge is based on the trial judge’s having given the jury, under the circumstances now to be described, a supplemental instruction while appellant was absent from the courtroom. During the trial the district judge repeatedly advised appellant of his right to be present during all proceedings. He also informed appellant that his unexplained absence from the courtroom at any time would be taken as a waiver of that right. After the jury retired, the judge repeated these points to appellant, specifically warning him that the jury might ask for additional instructions, and that appellant should be present if they did. Court was then recessed. This was at 5:28 P.M.
At 5:31 P.M. court was reconvened upon receipt from the jury of a request for additional instructions. Though they had previously been instructed that the principle of aiding and abetting applied “in this case,” the jurors were unsure whether it applied to both the assault count and the armed robbery count, or only to the former. The judge decided to grant the request, but appellant was nowhere to be found. With the consent of appellant’s counsel, the judge did not wait, but gave the following supplemental instruction in appellant’s absence:
The jury may recall that at the time that I instructed you, I indicated to you and stated that there was a principle of law known as aiding and abetting that is applicable to this case, and since it is applicable to this case, it is applicable to each count of the case.
Tr. II 296-297. Appellant reappeared in the courtroom a short time later and, learning what had transpired, offered no objection.
His claim now is that he had not validly waived his right to be present, at least not until the judge had waited a “reasonable” time for him to return. Though appellant casts his claim in constitutional terms, see Hopt v. People of Territory of Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), he might also have argued that he was not “voluntarily absent” in the manner required by Fed.R.App.P. 43.
However the claim is styled, we see no need to pass on its merits, since, even if error occurred, it clearly was harmless. Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434 (1963). Cf. United States v. Neil, 320 F.2d 533 (3d Cir. 1963) (prejudice to defendant from his absence during charge to jury not necessary). We can see nothing even faintly objectionable in the instruction in question. Appellant urges in his brief that it “may have highlighted” the aiding and abetting principle, but the problem was obviously already “highlighted” for the jurors by their own confusion, which the judge only acted to dispel. The supplemental instruction really was nothing more than a clarified restatement of the original aiding and abetting instruction. For a case holding that just such a clarification of an aiding and abetting instruction may harmlessly, if erroneously, be made out of the presence of the defendant, see United States v. Arriagada, 451 F.2d 487 (4th Cir. 1971).
As for argument that the jury may have “speculated adversely to the [appellant] about his absence from the courtroom,” we need only say that, standing alone, it does not establish the necessary “reasonable possibility of prejudice.” Walker v. United States, supra 322 F.2d at 435. Cf. Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046, 1050 (1971).
V
Presumably acting by reference to 14 D.C.Code § 305, the trial court instructed appellant that he would expose himself to impeachment by a prior conviction for armed robbery if he decided to take the stand in his own defense; and at least partly for that reason appellant elected not to testify. When, during oral argument of this appeal, the court noted that the applicability of Section 305 to trials of D.C.Code crimes in the District Court was pending before the court en banc, appellant sought and was granted leave to raise the issue by supplemental memorandum. We thereafter deferred disposition of this case pending the en banc decision.
That decision was forthcoming on June 16, 1975, in the opinion governing the group of four appeals consolidated for en banc consideration known as United States v. Belt, 169 U.S.App.D.C. -, 514 F.2d 837 (1975). Three of those appeals involved trials only of D.C.Code crimes, and it was held in respect of them that the D.C. impeachment statute applied. Belt itself involved a trial of one U.S.Code and one D.C.Code offense combined in the same indictment, in which trial impeachment was permitted by reference to Section 305. Because the jury acquitted of the federal offense, and convicted only of the local, it was argued that application of the statute was not error requiring remand for consideration of the admissibility of the pri- or conviction under the discretionary rule. We held that the defendant was entitled to a trial free of the statute, and that a remand was necessary. In reaching this result, the court en banc explicitly adopted the approach of the division in United States v. Hairston, 161 U.S.App.D.C. 466, 495 F.2d 1046, 1054 note 13 (1974), where it was said:
To the extent that confusion in the conduct of trials may be anticipated in those cases where the United States Attorney uses the authority given him under the reorganization statute to combine local and federal crimes in the same indictment, resulting in their trial together in the United States District Court, it would appear that the federal forum’s evidentiary law would govern impeachment by prior conviction. The United States Attorney is not, of course, bound under the statute to combine local and federal charges, and is, accordingly, under no inescapable necessity to try local crimes under other than local law.
The indictment in the case before us as originally returned included, in addition to the D.C.Code offenses of which appellant was eventually convicted, two counts under the U.S.Code for robbery of a federally-insured savings and loan association (18 U.S.C. § 2113(a)). These two counts were, however, dismissed by the Government, with the court’s permission, at a pretrial hearing. The trial itself was, accordingly, confined to the D.C.Code offenses, of which the District Court at that time had exclusive jurisdiction since the indictment was returned during the eighteen-month transitional period (February 1, 1971 to August 1, 1972) established by 11 D.C.Code § 502(2).
Appellant now argues that, because the indictment in this case as originally returned contained both U. S. and D. C. offenses, Belt requires that there be a remand to the District Court with directions to reexamine the question of appellant’s amenability to impeachment by prior conviction in the light of the discretion then available to it under the Luck-Gordon rule (which has been superseded as of July 1, 1975 by the Federal Rules of Evidence).
Belt does not extend so far. We held there that, where a defendant is actually tried simultaneously for both federal and local offenses, it is feasible for that trial to be held only by reference to one set of evidentiary principles, and that the governing evidentiary law would be federal. There was no trial here of federal and local offenses at the same time. The indictment as returned, it is true, included both, but the former disappeared before trial. We find no merit, therefore, in appellant’s post-Belt contention.
Affirmed.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
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songer_origin
|
H
|
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.
COMMISSIONER OF INTERNAL REVENUE v. PUPIN'S ESTATE et al.
No. 85.
Circuit Court of Appeals, Second Circuit.
Nov. 20, 1939.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Louise Foster, Sp. Assts. to Atty. Gen., for petitioner.
Harry W. Forbes, of New York City, for respondent.
Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
PATTERSON, Circuit Judge.
The question is whether the estate of Michael I. Pupin, deceased, is liable for additional estate tax. The decedent died in 1935, leaving an estate subject to estate tax. During his lifetime he had taken out policies of insurance on his life. Insurance of a value of $51,122.20 was payable to his daughter. Other insurance, $50,000 in amount, was payable to Columbia University. By section 302 of the Revenue Act of 1926, $40,000 of the life insurance was free from estate tax. Section 302 reads:
“The value, of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated. * * *
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.” 26 U.S.C.A. § 411(g).
Section 303 provides for deductions from the gross estate in determining the net estate for purpose of tax:
“For the purpose of the tax the value of the net estate shall be determined—
“(a) In the case of a resident, by deducting from the value of the gross estate. * * *
“(3) The amount of all bequests, legacies, devises, or transfers, to or for the use of * * * any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes * * *. The amount of the deduction under this paragraph for any transfer shall not exceed the value of the transferred property required to be included in the gross estate.” 26 -U.S.C.A. § 412 (d).
In the estate tax return the administratrix included in the gross estate $61,122.20 of the life insurance, being the amount in excess of $40,000, which was obviously correct, and claimed a deduction of $50,000 from the gross estate on account of the insurance in favor of Columbia University. The commissioner gave notice of a deficiency. He held that the $40,000 exclusion under section 302 should be prorated between the policies, $19,778.05 to the insurance payable to Columbia University and $20,221.95 to the insurance for the daughter, and that the amount of' deduction for the transfer to Columbia University under section 303 was $50,000 less the $19,778.05 already excluded from the gross estate, or $30,221.95. This meant an increase in the net taxable estate of $19,778.05 and a corresponding tax deficiency of $2,056.91. The administratrix took the point to the Board of Tax Appeals, which decided in her favor.
The commissioner is right in saying that in effect the administratrix allocated the $40,000 exemption under section 302 to the insurance for the daughter. This is true because section 303 limits a deduction on account of a transfer for educational purposes to the value of the transferred property included in the gross estate. The deduction' here being taken at $50,000, it necessarily means that the entire $40,000 exemption was applied against the insurance for the daughter.
But the question remains whether it was not the intention of Congress in a case like the present, insurance in favor of a kinsman and insurance in favor of a college, that the estate might allocate the $40,-000 exemption under section 302 to the former insurance and subtract the latter insurance from the gross estate under section 303 as a transfer for an educational purpose. Section 302 does not make any allocation of the exemption. The two sections, 302 and 303, are therefore to be interpreted and applied so as to effectuate the purpose of Congress in imposing the tax. See Estate of Sanford v. Commissioner of Internal Revenue, 60 S.Ct. 51, 84 L.Ed.-, decided by the Supreme Court November 6, 1939. We know that it was the purpose to encourage bequests or similar transfers to charities by relieving the estate from tax on the bequeathed or transferred property, quite as fully as though that property had had no existence. Edwards v. Slocum, 264 U.S. 61, 44 S.Ct. 293, 68 L.Ed. 564; United States v. Provident Trust Co., 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793. With the property transferred to Columbia out of the case, the daughter’s insurance would take the full benefit of the $40,000 exemption. On the other hand, the apportionment proposed by the commissioner would make the estate pay a larger tax than if there had been no insurance payable to Columbia, a result never intended by Congress.
The commissioner relies on section 314, 26 U.S.C.A. § 426, to the effect that if part of the gross estate consists of proceeds of life insurance receivable by a beneficiary other than the' executor, the executor may recover from the beneficiary such portion of the total tax as the proceeds of insurance in excess of $40,000 bear to the net estate, and that if there is more than one beneficiary the executor may recover from them in the same ratio. The intent of the section is that beneficiaries under insurance policies shall bear their fair proportion of the tax. It has no application to a case where no part of the total tax is attributable to the life insurance, as where the insurance is in favor of a charity.
The Board’s decision was in accord with McKelvy v. Commissioner, 3 Cir., 82 F.2d 395. We think that the decision was right.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_usc1sect
|
15
|
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 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Ezra Taft BENSON, Secretary of Agriculture of the United States, and Commodity Credit Corporation, Appellants, v. UNITED STATES of America et al., Appellees. J. G. BOSWELL AND COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees.
Nos. 15359, 15360.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 24, 1960.
Decided June 10, 1960.
Petition for Rehearing Denied July 19, 1960.
Mr. Donald A. Campbell, Atty., Dept, of Agriculture, with whom Messrs. Oliver Gasch, U. S. Atty., and Neil Brooks, Asst. Gen. Counsel, Dept, of Agriculture, were on the brief, for appellants in No. 15,359.
Mr. Walter D. Matson, Washington, D. C., with whom Mr. James K. Knudson, Washington, D. C., was on the brief, for appellants in No. 15,360.
Mr. C. H. Johns, Jr., Associate General Counsel, Interstate Commerce Commission, for appellee Interstate Commerce Commission.
Mr. Frederick G. Pfrommer, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Mr. John Guandolo, Washington, D. C., was on the brief, for appellees Railroad Companies. Messrs. Lawrence Cake and Raymond A. Negus also entered appearances for appellees Railroad Companies.
Mr. Samuel D. Slade, Chief, Appellate Section, Civil Division, Dept, of Justice, entered an appearance for appellee United States of America.
Before Mr. Justice Reed, retired, and Fahy, and Burger, Circuit Judges.
Sitting by designation pursuant to Sec. 294(a), Title 28 U.S.C.
Mr. Justice REED,
sitting by designation.
These are appeals from an order of the United States District Court for the District of Columbia granting a motion for summary judgment by the Interstate Commerce Commission and the intervening railroad carriers, and dismissing a complaint. Judge Sirica held that the action of the Commission in approving certain railroad tariffs on cotton as hereinafter described was based on substantial evidence, and reasonable. The complaint in the present proceeding was filed January 3, 1958, in the United States District Court for the Southern District of New York by Mr. Benson as Secretary of Agriculture under the authority of the Agricultural Adjustment Act of 1938. Many shippers of cotton from the Southwest United States to Gulf and Pacific ports, and Eastern states, joined as plaintiffs. Many carriers intervened as defendants. The case was later transferred for the convenience of the parties to the District Court for the District of Columbia.
The complaint sought to annul and set aside actions of the Interstate Commerce Commission in denying reparations in an administrative proceeding brought under 49 U.S.C.A. § 9 against numerous railroad companies that had carried baled cotton at rates alleged inapplicable because they were higher than those authorized.by the Commission. The District Court’s judgment left the ruling of the Commission intact.
The rates challenged in the reparations proceeding and here were the final result of a ruling by the Interstate Commerce Commission in proposed general increases of tariffs which became effective February 25, 1956. An additional six percent rate increase over several former percentage increases was there allowed because of actual increases in the cost of performing transportation services. All increases were directed to be made on the “basic freight rates and charges of the railroads.” The quoted words have been the standard direction for applying raises in the Increased Freight Rate Cases.
The heart of the controversy is the method that is to be applied in calculating the increases in the existing tariffs ■ for the cotton shipments. Freight charges on cotton have always been calculated upon the hundred pounds. Since cotton weighs lightly but bulks large, the shippers and carriers found it mutually profitable to compress cotton for transportation. The development of the powered compress in the nineteenth century made a contribution in simplifying the handling of cotton comparable to that made by Whitney’s invention of the gin to remove the seed from the lint in the eighteenth century, or the development of the mechanical picker in the twentieth century. To encourage compression the railroads many years ago introduced into their tariffs as an item an allowance for compression frequently limited to “not to exceed twenty-five cents per hundred pounds.” Compression ordinarily costs the shipper more than this allowance. The cost varies according to the charge at the particular compress. Tariffs were developed called compression-in-transit tariffs, abridged to “c.i.t.” Whatever their precise form, there was a freight rate or charge to the shipper of so much per hundred pounds for the carriage of the cotton, and an allowance to the shipper of not to exceed so many cents per cwt for compression, whether the cotton was compressed prior to or in the course of shipment.
As stated above, when subsequent increases of rates were approved, the Commission always directed that the increases were to be applied to “the basic freight rates and charges of the railroads.” The railroads carried out the order by adding the allowed percentage increase each time to their freight charge, continuing to deduct on their freight bills the unincreased compression allowance. The shippers urged that the allowance for compression should be deducted before the allowed percentage increase is calculated. Following is an example of the difference in result. This is drawn from an exhibit and brief for appellants J. G. Boswell and Company, et al., shippers of cotton. It is:
“a shipment of 100 bales of cotton from Bakersfield to the port of Long Beach, California. In making out this freight bill the railroad agent made the following entries:
(Freight Bill No. 005, as rendered)
Weight Rate Prepaid
53575 40 214.30
IC 15% 32.14
246.44
Less O85! CWT comp Allowance 42.86
203.58 Tax 6.11
209.69
The rate of 40 cents per 100 pounds is the gross c.i.t. rate from Bakersfield to Long Beach. The c.i.t. rate minus the stated compression allowance of 8 cents per 100 pounds was applicable to a shipment of cotton which “originated” at the Bakersfield compress. Since it was “compressed in transit at point of origin,” the railroad did not advance the compression charges to the compress company. It will be observed that the railroad agent added the 15-percent Ex Parte 175 surcharge before he deducted the 8 cents per 100 pounds compression allowance, but that the 3-percent transportation excise tax was computed after the deduction of the compression allowance. The shippers contend that the freight bill entries, in accordance with the above quoted governing rules in the general increase tariffs, should have been as follows:
(Freight Bill No. 005, as revised by shippers)
Weight Rate Prepaid
(c.i.t) 40
Less comp, allowance 08 /
53575 (net) 32 171.44
Ex Parte 175 surcharge 15%' 25.72
197.16
Tax 3% 5.91
203.07
On this shipment the Southern Pacific Company collected and retained for transportation services $203.58. The shippers contend the amount paid should have been $197.16 and that they were overcharged in this instance $6.42.
The validity of the claim for reparations turns on the meaning of the terms “basic freight rates and charges.” The shippers assert that the basic rate is the net amount paid by the shipper to the carrier after deduction of the carrier’s allowance to the shipper for compression. That is the c.i.t. rate, less the compression allowance times the weight. The railroads say the basic rate is the c.i.t. rate and the compression allowance is a charge against that basic rate. The method urged by the shippers has been called by the litigants the net rate method ; that urged by the railroads the gross rate method for calculating the allowed rate increase.
In the reparation cases, the Commission, which granted the increase, construed its language as the railroads interpret it. “We believe .that the defendants’ [the railroads] method of applying the general increases was proper and produced the legal rates.” “The c.i.t. rate is a specifically published freight rate to which the findings in the ex parte proceedings contemplated that the authorized increases would be applied.” Following each one of the Increased Freight Rate series of decisions, after the cost rises subsequent to World War II, the railroads have of necessity amended their tariffs to show the addi-
tional percentage allowed them by the then current increase. Under the Interstate Commerce Act, 49 U.S.C.A. § 15(7), the Commission had the duty in supervising the tariffs to satisfy itself of the “lawfulness” of such rate. The method of calculation here under attack was accepted by the Commission. In the Allenberg case, the Commission said, “The assailed rates * * * called c.i.t. rates, are the basic rates in effect on June 30, 1946, subject to subsequent general increases.” Revenue adjustments are normally superimposed on existing rate structures.
The Commission was conscious, at the time the rate increases were being considered, of this very problem of applying the general increases to cotton tariffs subject to a compression allowance. Their opinion in the rate increase proceeding involved here considers the question and decides on a method other than that pressed by appellants to alleviate any inequities. The method selected by the Commission was a rate increase hold-down setting an upper limit on the amount of increase possible by application of the percentage increase. Appellants do not attack the reasonableness of the overall rate and there is no indication, therefore, that the hold-down method of preventing inequality has proven inadequate.
This consideration and approval by the Commission lends impressive weight to the railroads’ contention that they followed the purpose and direction of the Commission in filing their tariffs. The Commission had power, legislative in character, to choose any reasonable method to calculate the proposed increase. In dealing with the interpretation by the Commission, courts accept its factual findings with reasonable support in the record. Even if not a fine question of fact, the meaning of “basic freight rates and charges” is one that depends upon the Commission’s intention in employing the term, seemingly devised by it for use in this very situation. Therefore courts will be slow to adopt any other meaning than the gloss put upon the phrase by the Commission, its author.
The Commission’s interpretation of the proper means of applying the rate increase was confirmed by it after the in-, crease was granted at the time the carriers submitted their revised tariffs to the Commission for approval. The purpose of the increases was to compensate the railroads for rising operating expenses. The new tariffs, after application of the increases showed the rate in terms of the charge per cwt subject to deduction for the unincreased carrier’s allowance for compression under the following note covering transit compression:
“Note 1. — When the shipper has paid the compression charges direct to the compress plant on a shipment of compressed cotton tendered at a compress, such compression charges not to exceed 25 cents per 100 lbs. may be deducted from the total freight charges computed on' the total weight at the CIT rate upon evidence of payment of such compression charges to the compress plant where the shipment was loaded.”
A tariff defined “CIT rate” as follows:
“The term ‘CIT rate’ refers to a commodity rate on cotton, in bales, which rate includes the cost of compression or any proportion thereof or which includes an allowance for the cost of compression.”
The increased tariffs took the “existing rates in cents per 100 lbs” and added to that figure the percentage of increase allowed. In Item No. 10 of such a tariff in Ex Parte 175, 284 I.C.C. 589, these directions appear:
“Item No. 10. — Application of Increased Rates and Charges — Section 1. All charges for line-haul transportation services, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, as provided in tariffs making reference to this tariff, * * * are increased 15 percent, * * *.
“In determining the applicable charge, first ascertain without reference to this tariff the amount of the line-haul transportation charges, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, and then increase the amount so ascertained 15 percent, * * * >>
It will be noted that Item 10 does not refer in any way to the compression charge. Thus they applied the percentage increases to the rate which had been used for the gross cost to the shipper for transportation. These tariffs were approved by the Commission.
The Commission deemed the compression charge a part of the line-haul rate but a non-carrier service. The line-haul rate is the charge for furnishing the line-haul transportation services, that is, those services or allowances that are considered a normal incident to the uninterrupted carriage of the goods from the origin to the destination. This is the transportation rate for carriage-and is to be distinguished from “accessorial” or “terminal” services, for which additional charges are made. The Commission is clearly empowered to determine what is embraced within the line-haul rate.
It is true, as pointed out by Commissioner Murphy, the single dissenter in the Allenberg case, 289 I.C.C. at 587, that when the shipper himself pays for compression before loading or ships c.i.t., he deducts the allowable compress charges from the gross rate, but that does not make the net result the basic freight rate or charge.
The Commission’s • interpretation of the words “basic rates and charges” is consonant with the Commission's purpose in granting the increase. Additional revenue was sought for the carriers. Only the tariff items that brought profit were increased, not the disbursement items.
“As a basis for their contention that only the net rate was increased by the general-increase tariffs, the complainants refer to the following statement in J. G. Boswell Co. v. Alabama G. S. R. Co., 276 I.C.C. 761, concerning such tariffs: ‘It is obvious that the tariffs contemplated only increases in rates and charges from which the carriers were to derive revenue.’ There is nothing in the later finding which requires application of the general increases to the net rate. This is true because the word ‘revenue’ as used in that finding is not synonymous with profit or net income. In other words, the defendants derive revenue from the gross rate as published in their rate tariff, and the disbursement of such revenue, through allowances or otherwise, can have no retroactive effect on the applicability of the general increases. The complainants also refer to decisions wherein a rate is defined as the net cost to the shipper of the transportation of his property. Such decisions were made concerning violations of the Elkins Act. Thus, while the net cost to the shipper is of primary importance in determining if a rebate has been given, it is of no moment in determining an applicable rate under section 6 of the act.”
It is suggested by the appellants that, as is shown in the freight bills set out above, at page 37 of 281 F.2d, the fact that the transportation tax is paid in these bills on the “net” sum is significant in showing that the “basic rate” is the “net” rate. Section 4271 of the Internal Revenue Code, 26 U.S.C.A. § 4271, puts the tax “upon the amount paid * * * for the transportation of property * * * by rail.” Federal Tax Regulations 1955, Part 143, § 13, applies the tax “to any payment, not specifically exempted, for the transportation of property.” But the basic freight rate is not determined by what the Government uses to calculate taxes. Nor is there any indication that the method used in the freight bills is a proper interpretation by the railroads making out the bills of the pertinent tax regulations. In any event, the definition of terms for purposes of taxation is irrelevant to the problem of defining the basic freight rate for purposes of the Interstate Commerce Act.
In view of our agreement with the District Judge’s determination as to the correctness of the railroads’ application of the rate increases, we do not reach the additional question presented below as to whether the Commission was correct in its view that § 16(3) of the Interstate Commerce Act barred the award of reparations on claims of the Commodities Credit Corporation relating to shipments delivered or tendered for delivery more than two years prior to the date of filing of the petition to intervene.
After the argument the court requested counsel to comment on the significance of a change in the method of stating tariff rates on cotton made by the carriers, effective in 1957. The effect is to state a rate for cotton by using the net rate. This eliminates the compression allowance as a factor in the basic freight rate. We think the change shows a simpler method for calculating the payments due the carriers, but we do not see that it affects the problem of what the Commission meant by the basic freight rate or charges.
The basic freight, we conclude, was, as the Commission ruled, the gross amount that was placed in the tariff for the line-haul transportation. The allowance was a charge against that rate. The Commission ruling upon that question is not only within its power to determine rate increases but seems to us to be a reasonable method of separating basic rates or line-haul rates from charges assumed by railroads that are, like compression, incidental to their services but beyond the carrier’s power to control as to cost or method of operation. Where the assailed rate is the result of the application of internally consistent definitions and general criteria and the overall result reached is not unreasonable, there is no basis for disturbing the Commission’s result.
Affirmed.
No. 15,360, J. G. Boswell and Co., et al. v. United States, is an appeal by the private shippers of cotton, affected by the increased rate orders, from the same order of dismissal. As the errors alleged are substantially the same, no separate opinion is necessary.
. Benson et al. v. United States, D.C.D.C. 1959, 175 F.Supp. 264.
. 52 Stat. 36, 7 U.S.C.A. § 1291; Administrative Procedure Act, 5 U.S.C.A. § 1009; Interstate Commerce Act, 49 U.S.C.A. § 17(9).
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71; 298 I.C.C. 577.
. Ex Parte No. 196, Increased Freight Rates 1956, 298 I.C.C. 279, 283.
. 298 I.C.C. at 347. In the orders there were limitations of a maximum of 9 cents per hundred pounds increase on cotton rates. This maximum is not involved in this controversy. Id., at 319. It was used to relieve any undue burden on the shippers. See Ex Parte 206, 299 I.C.C. at 444.
. No. 168 (1948), 272 I.C.C. 695, 717; 276 I.C.C. 9, 113; No. 175 (1951), 280 I.C.C. 179. 189; 281 I.C.C. 557. 639.
Recovery of the extra 20 cents in transportation excise tax (3 percent of the $6.42) is beyond the scope of this action.”
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 298 I.C.C. 577, 584. Cf. A. Levy & J. Zentner Co. v. Southern Pacific Co., 293 I.C.C. 279, for a determination involving a similar problem in the shipment of bananas.
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71, 77.
. This method was necessitated by the complications incident to the republication of new general tariffs. See The Fifteen Per Cent Case (1917) Ex Parte No. 57, 45 I.C.C. 303.
. 298 I.C.C. at 579. See also id., at 316-319. State of New York v. United States, 331 U.S. 284, 350, 67 S.Ct. 1207, 91 L.Ed. 1492.
. 298 I.C.C. at 317-319:
“These interests also assail the lawfulness of the proposed application of the percentage increase on compressed-in-transit (c.i.t) rates on cotton in carloads originating in California and Arizona. * * * The gist of the protest is that the percentage increases in these c.i.t. rates now proposed would be based on the full amount of the rates without regard for the fact that they include these allowances, which are not permanently retained by the carriers. The net result of the proposal is to increase these c.i.t. rates by amounts which are more than 7 percent of the revenues actually retained. * * *
* * * * *
“We believe that there is some merit to the contentions of these protestants, but the suggested remedy of requiring the carriers to eliminate the amounts which they assume for compression from the rates before applying the increases would not be practicable or reasonable for general application in this proceeding. A much more practical and reasonable solution would be to fix a maximum increase on cotton which would accord the same treatment to all cotton in bales, in carloads.”
. “When * * * the Commission declares a specific rate to be the reasonable and lawful rate for the future, it speaks as the legislature, and its pronouncement has the force of a statute.” Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 386, 52 S.Ct. 183, 185, 76 L.Ed. 348:
. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 86 L.Ed. 301; Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 180, 187, 59 S.Ct. 160, 83 L.Ed. 111; Levinson v. Spector Motor Service, 330 U.S. 649, 662, 672, 67 S.Ct. 931, 91 L.Ed. 1158.
. Pacific Southcoast Freight Bureau Circular No. 14-W, Agent J. P. Haynes, I.C.C. No. 1529, Effective December 22, 1951, Item 50.
. Id., Item 20.
. Supplement 2, Condensed Tariff of Increased Rates and Charges, No. X-175 A, I.C.C. Docket 30937.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 289 I.C.C. 71, 73, 75. See definition of CIT, supra, note 15.
. Whether as to particular situations a specific service is part of the line haul, or is accessorial or terminal is a frequently litigated issue. Cf. United States v. I.C.C., 352 U.S. 158, 77 S.Ct. 241, 1 L.Ed.2d 211; Secretary of Agriculture of United States v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015; United States ex rel. Arlington & F. Auto R. Co. v. Elgen, 1938, 68 App.D.C. 393, 98 F.2d 264.
. United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 408, 57 S.Ct. 804, 81 L.Ed. 1186; United States v. Wabash R. Co., 321 U.S. 403, 408, 64 S.Ct. 752, 88 L.Ed. 827; United States v. United States Smelting, Refining & Min. Co., 339 U.S. 186, 189-190, 70 S.Ct. 537, 94 L.Ed. 750.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 298 I.C.C. at 583.
. Cf. Armour & Co. v. United States, Ct.Cl.1959, 169 F.Supp. 521.
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 49? Answer with a number.
Answer:
|
songer_appel1_1_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
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: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Joseph DOUGHERTY, Appellant.
No. 86-1642.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 11, 1986.
Decided Jan. 28, 1987.
Duane L. Nelson, Lincoln, Neb., for appellant.
Steven A. Russell, Asst. U.S. Atty., Lincoln, Neb., for appellee.
Before JOHN R. GIBSON and FAGG, Circuit Judges, and HANSON, Senior District Judge.
The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.
HANSON, Senior District Judge.
Joseph Dougherty brings a number of issues before the court, appealing his conviction on two counts of violation of 7 U.S.C. § 2024(b), the unlawful acquisition of food stamps. For the reasons stated below, we affirm the decision of the district court.
I.
In March 1985, while working as an undercover agent involved in the enforcement of food stamp laws, Special Agent Joseph F. Meusberger met Arnold Kehm. Using the identity of “Joe Scott,” Meusberger told Kehm that if he should meet anyone who was interested in buying food stamp coupons that he could contact him.
In May of 1985, Meusberger learned Kehm had found someone who wanted to purchase food stamps. On May 14, 1985, Meusberger and Kehm went to the Mountains Bar in Lincoln, Nebraska and met with Joseph Dougherty. During that meeting Meusberger informed them that he had a girl friend who worked in the food stamp office and could obtain as many food stamps as he wanted. Dougherty and Kehm agreed to purchase food stamps.
On May 15, 1985, Meusberger again met with Dougherty and Kehm at the Mountains Bar, with Dougherty purchasing $970 in food stamps in exchange for $485 in cash. At this time, also, Meusberger gave Dougherty a telephone number so that Dougherty could reach him if he ever wanted to purchase additional food stamps.
No further contact was made by the secret service with Dougherty. On July 29, 1985, Dougherty called the undercover phone number at the office of the Secret Service, indicating to Special Agent Kelly Ward that he wanted to purchase additional food stamps. As a result of that contact, a meeting was scheduled so that Hol-ger Beckman, another Secret Service Agent, could meet Dougherty on July 31, 1985. At that time Dougherty purchased $950 in food stamps in exchange for $480 in cash.
The Secret Service had no further contact with Dougherty until he called the undercover number again on November 8, 1985, indicating his desire to purchase further food stamps. Dougherty initially stated that he could use $3,000 worth of food stamps. However, after learning that this might be his last opportunity to purchase stamps, Dougherty changed the figure to $4,000 worth of food stamps. During a still later phone conversation, Dougherty advised Meusberger that he was interested in acquiring all the $10,000 of food stamps that Meusberger indicated were available.
On November 20, 1985, Meusberger contacted Dougherty by phone and advised him that he had the $10,000 in food stamps Dougherty had requested. At this point Meusberger proceeded to Dougherty’s home where he met with Dougherty and Dougherty’s son. After some discussion, it was agreed that Meusberger would accept two checks totalling $5,000 for the $10,000 in food stamps. Meusberger again explained that his girlfriend stole the food stamps from work and expressed his desire not to go to jail as a result of this transaction. Meusberger then gave the food stamps to Dougherty who counted them to verify the amount. After determining that there were only $9,000 in food stamps instead of the $10,000 as agreed to, Meusber-ger left the checks and food stamps and walked out the door of the residence, ostensibly to obtain the final $1,000 in stamps. Once outside, Meusberger directed a surveillance team to enter the home and arrest Dougherty and his son. As the surveillance team was entering the house, Dough-erty attempted to throw the packages of food stamps out of the back door.
Following his arrest, Dougherty was interrogated by the Secret Service. He admitted purchasing $970 in food stamps on May 15, 1985 at the Mountains Bar, and further acknowledged that on July 31,1985 he purchased $950 in food stamps for $480 in cash. He also admitted that he had attempted to purchase $10,000 worth of food stamps for $5,000 in cash on November 20, 1985.
II.
In his opening statement to the jury, the prosecutor made the following statement: “We also expect to call Mr. Artie Kehm who has himself been convicted of a felony offense relating to this investigation.” The district court denied Dougherty’s motion for a mistrial as a result of this statement. Subsequently, the court gave a curative instruction to the jury.
Dougherty asserts these statements made by the prosecutor in his opening statement warranted the district court to declare a mistrial. He asserts that under Fed.R.Evid. 609(a), the prosecution cannot mention a witness’s prior conviction during opening statement. Under the law of this Circuit, the test for reversible prosecutorial misconduct has two parts: (a) the prosecutor’s remarks or conduct must have in fact been improper, and (b) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial. United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). Not every impropriety of argument calls for a new trial or for a reversal of a judgment of conviction; nor should appellate courts reverse for such improprieties unless persuaded that they prejudice the defendant and the prejudice was not removed by the trial judge before submission of the case to the jury. Keeble v. United States, 347 F.2d 951, 956 (8th Cir.), cert. denied, 382 U.S. 940, 86 S.Ct. 394, 15 L.Ed.2d 350 (1965). Moreover, the denial of a motion for mistrial is placed in the sound discretion of the district court and may only be reversed on a showing of abuse of discretion. Hernandez, 779 F.2d at 458.
A.
We believe that the Assistant United States Attorney’s reference in opening statement to Kehm’s conviction was improper. The government asserts that its reference to Kehm’s conviction was an attempt to blunt any potential impeachment of his credibility which would imply that he was lying in order to have his own sentence reduced. See Hernandez, 779 F.2d at 459; United States v. Veltre, 591 F.2d 347, 349 (5th Cir.1979). We would place credence in the government’s argument if there were reason to believe the blunting was indeed necessary to avoid impeachment of Kehm. In fact, the prosecutor failed to blunt on direct examination any cross-examination which would go into Kehm’s felony conviction; instead, the prosecutor told the jury gratuitously in opening statement that Kehm was convicted of a felony in this very set of transactions. By referring to Kehm’s conviction in his opening statement, instead of waiting until direct examination, the Assistant United States Attorney created not only the possibility of a mistrial, but also the real potential that on appellate review, dependent upon the prejudicial effect of the prosecutor’s remarks, an otherwise valid conviction could be reversed. See United States v. Pierce, 792 F.2d 740, 740 (8th Cir.1986); Hernandez, 779 F.2d at 459-60. This case demonstrates once again that too often in strong cases prosecutors make statements they need not make. Having let his “zeal out run discretion,” United States v. Killian, 524 F.2d 1268, 1274 (5th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976), the prosecutor forces us to determine the prejudicial effect of his statement.
B.
To determine the prejudicial effect of the prosecutor’s improper statements, we must examine: (1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the curative actions taken by the trial court. Hernandez, 779 F.2d at 460.
In the present case, when viewed in the context of the entire trial, the statement made by the prosecutor had little, if any, cumulative effect on the outcome of the trial. The prosecutor made no further reference to Kehm’s felony conviction and took additional measures to see to it that Kehm did not talk about his felony conviction during direct examination. Furthermore, the fact that the jury found Dough-erty not guilty of the only transaction regarding the prosecutor’s improper statement suggests that there was little cumulative effect on the jury.
In addition, there was overwhelming evidence of guilt as to the second and third counts irrespective of the improper statement made by the prosecutor. Tape recordings of each transaction, testimony, and exhibits conclusively demonstrated Dougherty’s guilt with regard to the transactions occurring on July 31 and November 20.
Finally, the curative action taken by the trial court eliminated any prejudicial impact the improper statement would have had. The district court offered to give a curative instruction to the jury regarding the prosecutor’s remarks. The court then advised the defendant that it would give such an instruction when requested by counsel. During the instruction conference, defendant’s counsel did not object to giving a cautionary instruction, although not abandoning his motion for a mistrial. The court thereafter instructed the jury:
During his opening statement on Monday, the government counsel said Artie Kehm had been convicted of a felony. There is no evidence that Artie Kehm had been convicted of a felony and you must disregard entirely the statement that he has been.
(Tr. 720-21). Ideally, the trial court should have given a cautionary instruction to the jury immediately after the misconduct had occurred. Hernandez, 779 F.2d at 461. Although the curative instruction was not given immediately after the improper statement had been made by the prosecutor, it is clear that the district court’s remedial action alleviated any possible prejudice. As a result, in the totality of the circumstances of the entire trial, there was no prejudice to the defendant because of the prosecutor’s reference to Kehm’s conviction.
C.
In closing argument, the prosecutor made the following statement:
Let me talk first of all about this notion of specific intent. * * * The instruction only requires * * * that a defendant do an act which he believes the law forbids. Not the food stamp law. Mr. Nelson would suggest that you graft more into the instruction than is there. All I can say in that regard is to look at the instruction and to consider the instruction in the light of your common sense usage as to language.
(Tr. 709). Dougherty asserts prejudicial error regarding this comment. He argues that the insertion of the words “he believes” in the prosecutor’s closing argument misled the jury to such an extent that a new trial is warranted. We do not believe that the prosecutor’s statement in closing argument rises to the level of pros-ecutorial misconduct. Rather, the prosecutor’s statement was nothing more than a recital of the holding in Liparota v. United States, 471 U.S. 419, 433-34, 105 S.Ct. 2084, 2092, 85 L.Ed.2d 434 (1985), in which the Court stated that “the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession.” Id. at 434, 105 S.Ct. at 2092. The district court, therefore, did not err in denying Dougherty’s motion for a mistrial with regard to the prosecutor’s closing argument.
III.
Dougherty also contends that the evidence presented at trial established that he was entrapped by agents of the Secret Service, and that he should have been acquitted on all counts without submitting the case to the jury.
In order for Dougherty to establish entrapment as a matter of law,
[t]he evidence must have clearly indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.
United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978). As the Supreme Court has indicated, the principal focus of this inquiry is upon the “intent or predisposition of the defendant to commit the crime.” United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). In distinguishing between the naive first offender and the street wise habitue, the cases reveal that the most important predisposition factor is whether a defendant’s reluctance to engage in criminal activity has been overcome by repeated government inducement. United States v. Lard, 734 F.2d 1290, 1294 (8th Cir.1984). Viewing the evidence in this case in a light most favorable to the government, we conclude that the evidence established that Dougherty was predisposed to commit the charged crimes.
It is clear that Dougherty initiated contact with the Secret Service agents on July 29 and November 8, 1985 in order to purchase food stamps. He specified the dollar amount and, during the latter of the two transactions, actually increased the dollar amount at his own suggestion. The Secret Service agents did no more than offer him an opportunity to commit a crime. He willingly and knowingly engaged in a course of criminal conduct which he knew to be illegal.
Dougherty further argues that it is possible to infer from the jury’s dismissal of Count II that the jury found that he had been entrapped with regard to the May 5, 1985 purchase of food stamps. He therefore contends by inference that Counts III and IV would have to be dismissed as well because tainted by the first transaction.
In a nearly identical case to the one at bar, the Seventh Circuit stated:
[t]he court knows of no per se rule which provides that the taint of the first entrapment requires judgments of acquittal as to all subsequent transactions. To the contrary, as long as the evidence was sufficient to support the counts on which the defendant was actually convicted, a jury verdict reflecting compromise or even inconsistency is permissible and legitimate.
United States v. Fields, 689 F.2d 122, 125-26 (7th Cir.1982). Furthermore, the jury verdict in this case was not necessarily inconsistent. Even though the jury found Dougherty not guilty of Count II, we find that the additional evidence of Dougherty’s conduct in arranging for the July 31 and November 20, 1985 food stamp purchases clearly establishes the requisite predisposition as to Counts III and IV. We, therefore, reject Dougherty’s argument that his conviction for only the subsequent offenses was improper.
In addition to his entrapment argument, Dougherty argues that the government agents violated his due process rights and that he should have been given the opportunity to present evidence on this issue to the jury for its consideration. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), a plurality of the Court held that once predisposition had been shown, government misconduct could never be used to overturn the conviction, not even on due process grounds; rather, the remedy lies in prosecuting the police. Id. at 490, 96 S.Ct. at 1650. However, five justices disagreed with this view, stating that due process may bar a conviction where the conduct of law enforcement authorities is sufficiently offensive, even though the defendant is “predisposed.” Id. at 492, 96 S.Ct. at 1651 (Powell, J., concurring, joined by J. Blackmun); id. at 497, 96 S.Ct. at 1653 (Brennan, J. dissenting, joined by JJ. Stewart and Marshall). Therefore, apart from our conclusion that Dougherty failed to prove his entrapment defense, we need to examine whether the government conduct was “so outrageous that due process principles should bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S, at 431-32, 93 S.Ct. at 1643; United States v. Lard, 734 F.2d at 1296-97.
We do not believe that the government conduct in this case involved extreme and questionable measures triggering fundamental fairness concerns. As stated earlier, the uncontroverted evidence established that Dougherty was predisposed to buy food stamps. In fact, the evidence demonstrates that it was Dougherty who initiated the July 31, 1985 and November 20,1985 transactions. Moreover, whatever the parameters of the due process bar may be, it does not include the mere sale by the government of contraband to one predisposed to buy it. Hampton, 425 U.S. at 489-91, 96 S.Ct. at 1649-51. As the Court stated in United States v. Khatib, 706 F.2d 213 (7th Cir.1983):
If his position were accepted, no conviction could ever be based on the sale of contraband by a government agent, because the agent would have introduced the essence of the illegality into the transaction.
Id. at 217. Moreover, the most effective way to catch and deter those who deal in large quantities of stolen food stamps may be for the government itself to provide the stamps to willing buyers. United States v. Parisi, 674 F.2d 126,127 (1st Cir.1982); see also United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983). Thus, the district court properly concluded that Dough-erty’s due process rights had not been violated by the Secret Service agents’ selling him food stamps.
Dougherty next asserts that, if a due process violation were not established as a matter of law, he should have been allowed to introduce relevant evidence on this issue and the question should have been submitted to the jury for determination. In United States v. Quinn, 543 F.2d 640 (8th Cir.1976), this court held that “[a] claim of entrapment on the basis of outrageous government involvement does not present any question for a jury to decide but solely a question of law for the court.” Id. at 648. In United States v. Johnson, 565 F.2d 179 (1st Cir.1977), the court held:
Under any view, it is the court’s province to decide whether a defendant’s case was such that, if believed, it would fall into the exceptional category mentioned by Justice Powell [in Hampton v. United States, 425 U.S. 484, 493, 96 S.Ct. 1646, 1651, 48 L.Ed.2d 113 (1976)]. If such a determination were left to a jury’s unguided discretion, as under the instruction proposed here, the entrapment defense as now understood would be transformed into an invitation to twelve juors to consider in virtually any case whether the defendant was treated “fairly.” Whatever its possible role in resolving contested factual issues raised by an entrapment defense, the jury is not equipped and should not be permitted to speculate on whether particular facts do or do not amount to fundamental fairness.
Id. at 181-82. We conclude that the district court properly refused to submit the issue of a due process violation to the jury. Moreover, because this was a question of law for the court to decide, we find no error in the district court’s refusal to allow Dougherty to present evidence to the jury of a due process violation.
IV.
Dougherty asserts that the government failed to present sufficient evidence of an unauthorized acquisition of food stamps, of his specific intent, and that he actually had acquired food stamps on November 20, 1985.
Dougherty contends that there was no evidence of his unauthorized acquisition of food stamps in that Agent Meusberger legitimately possessed the stamps pursuant to a memorandum between the United States Secret Service and the Department of Agriculture; therefore, because Meusberger was authorized to possess the food stamps, Dougherty asserts that it could not have been a violation of 7 U.S.C. § 2024(b)(1) for him to have purchased them. In United States v. French, 683 F.2d 1189 (8th Cir.1982), we stated:
In 7 U.S.C. § 2024(a), Congress authorized the issuance or presentment of food stamps for enforcement purposes. In 7 U.S.C. § 2024(b), Congress made the unauthorized acquisition of food stamps a crime. Obviously, Congress did not intend to exempt from criminal penalties anyone who acquired food stamps from an undercover agent. The fact that a seller is authorized to sell does not mean that the buyer must necessarily be cloaked with authority to buy.
Id. at 1194-95 (quoting United States v. Stencil, 629 F.2d 984, 985 (4th Cir.1980)); see also United States v. Burrell, 720 F.2d 1488, 1493-94 (10th Cir.1983). So, too, in this case because Meusberger was authorized to sell food stamps does not vest Dougherty with authority to purchase food stamps. Thus, we find this argument to be without merit.
Dougherty next argues that specific intent was not proven at trial because the government never demonstrated that he specifically knew what he was doing was unlawful. In Liparota v. United States, 471 U.S. 419,105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), the Court stated:
This holding does not put an unduly heavy burden on the Government in prosecuting violators of § 2024(b). To prove that petitioner knew that his acquisition or possession of food stamps was unauthorized, for example, the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession. Nor must the Government introduce any extraordinary evidence that would conclusively demonstrate petitioner’s state of mind. Rather, as in any other criminal prosecution requiring mens rea, the Government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was unauthorized or illegal.
Id. at 433-34, 105 S.Ct. at 2092. The Court went on to note that evidence that a person bought food stamps at a substantial discount from face value, that the transaction took place in a back room to avoid being seen by others, and that the stamps had been marked “nontransferable” could lead to an inference that the petitioner knew his acquisition and possession of food stamps was unauthorized. Id. at 434 n. 17, 105 S.Ct. at 2093 n. 17.
The evidence in the present case indicates that Dougherty knew that he was obtaining the food stamps from a man whose girlfriend was stealing them from her workplace. In addition, he purchased them for half of their face value. Moreover, each of the food stamps that he was given was stamped “nontransferable.” The jury could therefore reasonably infer from the evidence presented at trial that Dougherty knew that he was acting in violation of some law or regulation. The district court properly submitted the issue of specific intent to the jury and the jury properly found from the evidence that Dougherty knew his acquisition of food stamps was not authorized.
Dougherty further contends that the district court should have given his proffered instruction on the issue of specific intent. Dougherty’s instruction would have required the government to prove he knew “regulations did not authorize him to acquire food stamps for money from a government agent who was then in lawful possession of the stamps.” However, his instruction is an incorrect statement of the law. See infra at 772-73; see also Liparota, 471 U.S. at 422 n. 3, 105 S.Ct. at 2086 n. 3. We find no error in the district court’s refusal to submit Dougherty’s instruction on the issue of specific intent.
Dougherty next argues that there was no evidence that he actually acquired the food stamps on November 20, 1985 because the transaction had not been completed at the time the Secret Service agents arrested him. Meusberger testified that Dougherty had taken physical possession of $9,000 in food stamps, counted the stamps book by book, and that he had the food stamps in his possession when the Secret Service agents arrested him. The evidence further indicated that Dougherty’s son made out two checks, payable to Agent Muesberger’s undercover identity, “Joe Scott,” and handed both checks to Agent Meusberger while Dougherty was counting the food stamps.
The applicable statute, 7 U.S.C. § 2024(b)(1), states that “whoever knowingly * * * acquires * * * or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall * * .* be guilty of a felony * * The evidence shows that the November 20 transaction was interrupted only after Dougherty had taken the food stamps and counted them, and his son had written checks of $5,000 in order to purchase the stamps. Thus, the jury could reasonably conclude that Dougherty had “acquired” or “possessed” the stamps in violation of the statute.
V.
Dougherty alleges that the superceding indictment charging him was insufficient because it did not specifically make reference to the statutes and regulations regarding what constitutes an unauthorized manner of acquiring food stamps. He further argues that the regulations themselves are too nonspecific to support a criminal prosecution, and that the district court erred in failing to dismiss the indictment and failing to give his requested instruction on the food stamp program.
The superceding indictment charged that Dougherty “did knowingly acquire United States Department of Agriculture food stamp coupons * * * in a manner not authorized by the provisions of Chapter 51, Title 7, United States Code, and the regulations issued pursuant to said Chapter.” The indictment follows the wording of the statute. It fully, expressly, and without ambiguity sets forth the elements necessary to constitute the offense, and contains a statement of facts and circumstances sufficient to inform the accused of the offense with which he is charged. United States v. French, 683 F.2d at 1194. Thus, Dougherty’s argument concerning the sufficiency of the indictment is without merit.
Dougherty cites no authority to support his contention that his proffered food stamp program instruction was a more correct statement of the law than the instruction submitted by the court. The instruction given was approved by this court in French. 683 F.2d at 1195. He therefore demonstrates no error in the instruction given by the district court.
VI.
In response to an oral motion to suppress, the prosecution presented evidence outside the presence of the jury, regarding a statement made by Dougherty on November 20, 1985 to the Secret Service. After Dougherty had been informed of his rights, he signed a form indicating that he understood his rights and had no further questions regarding them. The interrogating agent then obtained Dougherty’s statement which Dougherty read and signed as accurate.
Dougherty now argues that the statement should not have been introduced into evidence because the agent did not receive an express waiver of each right found on the warning of rights form and statement form. The court ruled that the statement given by Dougherty was freely, voluntarily, and knowingly made, and thus allowed the introduction of evidence regarding his confession.
Whenever the state bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of his Miranda rights, the state need prove waiver only by a preponderance of the evidence. Colorado v. Connelly, — U.S.-, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). The question of whether a defendant has waived Miranda rights is one of fact, and the trial judge’s findings of fact regarding defendant’s waiver will not be overturned unless clearly erroneous. United States v. Ashby, 771 F.2d 392, 395 (8th Cir.1985). The totality of the circumstances of each case must be examined to determine if an accused has made a voluntary, knowing, and intelligent waiver of his rights to remain silent and to have counsel present. Lamp v. Farrier, 763 F.2d 994 997 (8th Cir.), cert. denied, — U.S.-, 106 S.Ct. 534, 88 L.Ed.2d 465 (1985).
The evidence demonstrates that Dougherty knowingly, voluntarily, and intelligently waived his rights and provided Agent Henderson with a statement concerning the food stamp transactions. Dougherty was informed verbally of his rights and was afforded the opportunity to read the warning of rights form and the written statement regarding the prior transactions, and acknowledged on the written form that the statement he had been given was correct. From this record we conclude that the findings of the district court at the suppression hearing and at trial were not clearly erroneous.
VII.
At sentencing, the district court suspended the execution of a sixty-day period of incarceration and placed Dougherty on probation for one year. Two of the conditions of his probation were that he pay $470 in restitution and pay taxable costs of prosecution.
Dougherty argues that the government suffered no loss from his illegal purchase of $950 in food stamps in exchange for $480 on July 31, 1985. This argument is merely a restatement of his earlier argument that he did not “acquire” the stamps in an unauthorized manner because Agent Meusberger in his undercover capacity created the crime and therefore the government cannot claim restitution. Once again, his argument is without merit.
Section 3651 of Title 18 specifically outlines that a court may, in suspending a sentence and imposing probation, require “restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had * * * » The evidence in this case established that Dougherty unlawfully acquired $950 in food stamps in exchange for $480 in cash on July 31, 1985. In effect, there was a loss to the United States Department of Agriculture in the amount of $470. As a result, the United States, as dispenser of the food stamps, would be the aggrieved party for purposes of restitution under 18 U.S.C. § 3651. We conclude, therefore, that the district court properly awarded restitution to the United States.
Dougherty also asserts that the district court erred in taxing costs of defense witnesses on him. The district court assessed $307.80 in costs against Dougherty, $187.80 of which was for defense witnesses. Section 1920 of Title 28 gives a judge or clerk the authority to tax costs, including fees and disbursements for witnesses. 28 U.S.C. § 1920(3). Generally, a district court’s taxation of costs may be set aside only upon a finding of abuse of discretion. United States Marshals Service v. Means, 741 F.2d 1053, 1057-58 (8th Cir. 1984) (en banc).
Dougherty asserts that the assessment of costs for defense witnesses is contrary to the spirit of the Criminal Justice Act, 18 U.S.C. § 3006A [CJA]. The CJA recognizes the need for supporting services to a defense by providing that the United States will pay for “investigative, expert, or other services necessary to an adequate defense” if the defendant is unable to pay for them. 18 U.S.C. § 3006A(e). Dougherty does not assert that the defense witnesses were “necessary” to his defense within the parameters of the CJA. Thus, we conclude that the CJA is not applicable to this case. See United States v. Maret, 433 F.2d 1064, 1068-69 (8th Gir.1970). Nor do we find compelling his assertion that the assessment of costs is somehow inconsistent with the “spirit” of providing an adequate defense without running the indigent defendant into debt. The state need not purchase for the indigent defendant all the assistance that his wealthier counterpart can buy. Ake v. Oklahoma, 470 U.S. 68, 71, 79-80, 105 S.Ct. 1087, 1090, 1095, 84 L.Ed.2d 53 (1984); see also Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985). Thus, we conclude that the district court reasonably exercised its discretion under 28 U.S.C. § 1920(3) in taxing costs to the defendant as a special condition of probation.
Having carefully reviewed all of Dough-erty’s arguments, we find no reversible error by the district court. The judgment is affirmed.
. The HONORABLE WARREN K. URBOM, United States District Judge for the District of Nebraska.
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Larry Francis WEIR, Appellant, v. H. A. SIMMONS, First True and Real Name Unknown, Appellee.
No. 17980.
United States Court of Appeals Eighth Circuit.
March 9, 1966.
See also, D.C., 233 F.Supp. 657.
Richard J. Bruckner, of Schrempp, Lathrop & Rosenthal, Omaha, Neb., Henry C. Rosenthal, Jr., and David S. La-throp, of Schrempp, Lathrop & Rosen-thal, Omaha, Neb., for appellant.
Howard E. Tracy, of Luebs, Elson, Tracy & Huebner, Grand Island, Neb., Richard A. Huebner, of Luebs, Elson, Tracy & Huebner, Grand Island, Neb., for appellee.
Before VOGEL, Chief Judge, and VAN OOSTERHOUT and MEHAFFY, Circuit Judges.
MEHAFFY, Circuit Judge.
Plaintiff, Larry Francis Weir, brought this action for damages against defendant, H. A. Simmons, for personal injuries received in a collision between plaintiff’s motorcycle and defendant’s tractor-trailer near Heartwell, Nebraska.
Plaintiff specified numerous acts of negligence, all of which were denied by defendant, who in turn pleaded contributory negligence by plaintiff.
Diversity of citizenship and the requisite amount in controversy established jurisdiction.
The case was tried to a jury which returned a verdict for defendant. Judgment was entered thereon and we affirm.
Early in its comprehensive charge to the jury, the trial court recited the allegations of negligence pleaded by each party. In the concluding paragraph of said instruction, the court explained:
“The foregoing is an extended statement of the contentions of the parties as set forth in their pleadings, and is given you to inform you as to the issues involved in these cases.”
Plaintiff now argues “that it was prejudicial error to instruct the jury on these allegations of negligence for the record is absolutely devoid of any evidence to support them.” These instructions were not binding and amounted to nothing more than an explanation by the court of the respective claims of the parties. The purpose of instructions is to apprise the jury of the questions and issues involved and the applicable rules of law. Terminal R. R. Ass’n v. Howell, 165 F.2d 135, 139 (8th Cir. 1948); Coyle v. Stopak, 165 Neb. 594, 86 N.W.2d 758 (1957); Barney v. Adcock, 162 Neb. 179, 75 N.W.2d 683 (1956). We cannot conceive how these innocuous portions of the pleadings could have been in any wise prejudicial as they were justified by the evidence as hereafter will be shown, and would have been proper even if they had been binding on defendant’s theory of the case, e. g., Kroeger v. Safranek, 161 Neb. 182, 72 N.W.2d 831 (1955). It is proper for a court to state the respective claims of the parties and, if there is evidence to support the proposition, each party is entitled to instructions on its theory of the case. Chicago & N. W. Ry. v. Green, 164 F.2d 55, 61 (8th Cir. 1947); Beck v. Trustin, 177 Neb. 788, 131 N.W.2d 425, 432 (1964); Gain v. Drennen, 160 Neb. 263, 266, 69 N.W.2d 916, 918 (1955); Rice v. American Protective Health & Acc. Co., 157 Neb. 256, 263-264, 59 N.W.2d 378, 383 (1953).
A brief recitation of the facts disclosed by the evidence is helpful because, in our opinion, the circumstantial evidence and proof of physical facts justified the trial court in submitting the issue of plaintiff’s negligence to the jury. Both plaintiff and defendant’s vehicles were traveling east on U. S. Highway 6-34 and approaching the north-south intersection with a public road leading north into Heartwell, Nebraska. The accident occurred about 8:30 a. m. April 20, 1962 on a dry, sunshiny morning. There was little vehicular traffic. Some two thousand feet west of the intersection, defendant, while traveling at a speed of approximately fifty-five miles per hour, approached a viaduct and with knowledge that he was going to turn north, or to his left, at the intersection, activated his electrical left turn signal. The edges of the two lane concrete highway were bordered by six inch drainage curbing. The intersecting road was dirt and gravel. Defendant was familiar with the curbing and to avoid damaging his tractor-trailer reduced his speed to approximately five miles per hour before leaving the highway. At no time during this approach did defendant see the plaintiff in his rear view mirror. Somewhere near the crest of the viaduct and approximately one hundred fifty feet west of the intersection, plaintiff undertook to pass defendant, and as defendant turned left and entered the gravel road leading to Heartwell the two vehicles collided.
Plaintiff admitted only that he noticed the trailer’s lights as defendant applied his brakes and reduced his speed in approaching the intersection.
Engineering maps and photographs of the existing conditions approaching and at the scene of the accident were introduced as stipulated exhibits. These disclosed, among other things, a clearly obvious highway sign warning of the intersecting road.
Within minutes after the accident, a Nebraska highway patrolman arrived at the scene. His investigation report revealed that the left turn signal on defendant’s truck was still activated. A “squash” mark was found on the north curbing and pavement indicating that the motorcycle had struck the north curb forty-six feet west of the point of impact. Physical marks defined the path of the motorcycle from the point where it struck the north curbing up to the point of impact. The last eight to ten feet of this distance denoted a “feathered out mark” suggesting that the motorcycle skidded on its side into the truck. From all of the circumstantial evidence and physical facts, the jury could have properly inferred that plaintiff, from a position close behind the tractor, undertook to pass in spite of approaching the intersection, and in so doing the motorcycle first collided with the north curbing causing plaintiff to lose control and skid into the side of defendant’s tractor which had partially entered the intersection. There was ample room for the motorcycle to turn left at the intersection short of striking the truck if plaintiff had been in reasonable control of his machine.
Plaintiff bases his argument primarily on the fact that aside from his testimony there was no other eyewitness evidence. There need be none as negligence is a factual issue and can as well be proven by circumstantial evidence. The Supreme Court of Nebraska, quoting from earlier authority, said in Davis v. Dennert, 162 Neb. 65, 73, 75 N.W.2d 112, 118 (1956):
“ ‘Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. All that the law requires is that the facts and circumstances proved, together with the inferences that may be properly drawn therefrom, shall indicate with reasonable certainty the negligent act charged.’ ” (Citation omitted.)
See also Flory v. Holtz, 176 Neb. 531, 126 N.W.2d 686 (1964); Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N.W.2d 584 (1962); Coyle v. Stopak, supra.
Defendant would have us hold as a matter of law that plaintiff’s testimony was not sufficient to make a prima facie case because it was manifestly untrue. Plaintiff did indeed testify at trial contrary to his pretrial deposition. His reason for changing his version of the accident was that the testimony of the highway patrolman had proved him wrong.
It is only in extraordinary cases that a court is justified in disregarding sworn testimony, and it is primarily and preferably a question for the trial court’s determination. The trial court here did not disregard plaintiff’s testimony, and we do not reach the question because sufficient evidence was adduced making a proper basis for the jury’s verdict.
Plaintiff next complains of the court’s usage of the word “proper”, rather than “reasonable,” when expressing defendant’s contention that plaintiff “failed to keep his motorcycle under proper control in that he failed to keep it upright on its wheels.” (Emphasis ours.) We note that in Instruction No. 17 when the court specifically instructed on the law of the case the jury was admonished that the driver of a motor vehicle should have such vehicle under reasonable control. There was no error, but even so plaintiff did not object to this language at trial and he cannot effectively do so here for the first time. Fed.R.Civ.P. 51.
Plaintiff also objects to the giving of part of Instruction No. 18. This instruction applied to both vehicles. It was general in nature, and when read in context with Instruction No. 17 could not have misled or confused the jury with respect to the degree of control necessary under the circumstances. Again, plaintiff failed to make proper objection at trial and again Rule 51 precludes him from raising it here.
The trial court gave thirty-nine instructions. We have carefully considered all of them. They fully, fairly and properly charge the jury on all aspects of the case. As a reviewing court, we must consider them as a whole and have done so and find no error. Jiffy Markets, Inc. v. Vogel, 340 F.2d 495 (8th Cir. 1965); Dun & Bradstreet, Inc. v. Nicklaus, 340 F.2d 882 (8th Cir. 1965), cert. denied, 382 U.S. 825, 86 S.Ct. 57, 15 L.Ed.2d 70 (1965); Hiner v. Nelson, 174 Neb. 725, 119 N.W.2d 288 (1963).
Finally, plaintiff submits that the court erred in permitting defendant to describe the turn signals on his truck. It is claimed that no foundation was laid that the signals were of the type approved by the Nebraska Motor Vehicle Department.
Defendant described his turn signal as an electric type operated by a small lever below the steering wheel that activated the signals to flash and that said signal device was the same as would be found on trucks of “that nature” and approved by the Motor Vehicle Department. Additionally, he testified that the truck was purchased new in 1960, some six years after the passage of the Nebraska statute requiring this type signal.
At the time of the objection, the court advised plaintiff that he would be permitted to rebut defendant’s evidence that the signal device was of the type approved by the Motor Vehicle Department. Whether the signal device did or did not comply with the Nebraska statute is irrelevant as to the admissibility of defendant’s testimony describing the device. It was not incumbent upon defendant to prove anything more, and if plaintiff felt the device was not of the type approved by the Motor Vehicle Department, he was perfectly free to offer such evidence.
The trial court did not specifically inform the jury of the type signals authorized or required by Nebraska statute, but undoubtedly would have done so had plaintiff desired it. Both plaintiff’s objection at trial and motion for new trial went only to the admissibility of the evidence and were properly overruled.
We have carefully canvassed the entire record and find it free of prejudicial error. The judgment is affirmed.
. The following testimony resulted from an inquiry of plaintiff’s speed at the time defendant began his left-hand turn:
“Q. Do you mean, sir, that that answer is not true now? A.' Sir, there has been some testimony from the patrolman, from some statements that in the definition that I gave that I can see that I was wrong.
“Q. And you have changed your testimony because you heard the testimony of the patrolman; is that what you mean? A. Because the patrolman proved that I was wrong.
“Q. And so you bave now taken another version of the accident because of what you heard the patrolman say? A. Yes, sir.
sje $ í}: s¡c
“Q. You have changed them because of what you heard the patrolman say? A. I have changed them because the patrolman showed me that I was wrong, sir.
“Q. And so your version is now different because you have been proven wrong; is that right? A. Yes, sir.”
. Instruction No. 17:
“A driver of a motor vehicle should have said vehicle under such reasonable control as will enable such driver to avoid collision with other vehicles, assuming that the drivers of other vehicles exercise due care. Reasonable control by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence upon the highways in the exercise of due care; but complete control such as will only prevent a collision by anticipation of negligence or illegal disregard of traffic regulations, in the absence of notice, warning or knowledge, is not required by the laws of Nebraska.” (Emphasis ours.)
. Instruction No. 18:
“Now you are instructed that the driver of a leading automobile and the operator of a vehicle following have reciprocal duties. Each must exercise due care, must keep his vehicle under reasonable control, must drive at a speed which is reasonable and proper under the circumstances and must give due regard to the rights of others, and in general must so operate his vehicle as to avoid unnecessary collision with the other. The driver of a leading automobile has no absolute legal right superior to the driver of the vehicle following. The leading driver must exercise due care not to turn, slow up or stop without adequate warning of his intention to do so to the driver of the vehicle following. You are instructed that the driver of the vehicle following must exercise reasonable care, likewise, in the control of his vehicle. The driver of the vehicle following must exercise ordinary care as herein defined by watching for signals given by the driver ahead indicating an intention to turn from a direct course and to take such action in event of movement upon the part of the vehicle ahead as a reasonably prudent person would do under the circumstances and conditions then existing.”
. Neb.Rev.Stat. § 39-7,116 (Reissue 1960) provides :
“The signals required by sections 39-7,-111 and 39-7,115 shall be given either by means of the hand and arm or by a signal lamp or signal device of a type approved by the Department of Motor Vehicles. When a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle the signals must be given by such a lamp or device. It shall be unlawful to operate on any public street or highway in this state, any motor vehicle having four or more wheels manufactured or assembled after January 1, 1954, designed or used for the purpose of carrying passengers or freight, unless such vehicle is equipped with the automatic turn signals in workable order.”
. “Q. Did you have turn signals on your vehicle? A. I did have.
“Q. What type of turn signal were they? A. Electric.
“Q. And how were they operated? A. They are operated by a small lever which is below the steering wheel.
“Q. And when you turn that lever what happens? A. The turn signals would start flashing.
“Q. And where would they flash? A. There is one on the — on each front fender of the tractor and one at — on each corner of the rear of the trailer.
“Q. Was there anything unusual about your turn signals, or were they of the same standard type that one finds on trucks of this type generally? A. They are the same as will be found on trucks of that nature.
“Q. And they are approved by the highway department, aren’t they? A. They are.
“Mr. Rosenthal: I would object, Your Honor, to that because there is no proper foundation that he knows what type has been approved, nor has there been any evidence of the type that has been approved for his vehicle.
“The Court: Let’s find out when he bought the truck. I think that may cover it. It had to be on all trucks sold after 1954, wasn’t it, some date in January?
“Mr. Rosenthal: The important thing is, Your Honor, they have to be approved by the State.
“The Court: Yes, but if the truck was purchased on the open market after that time I think I will not require any further proof. We will see what the answer is.
“Q. When did you purchase this truck? A. The truck was purchased new in 1960.
“The Court: Now I think I will let the answer stand, and if you have any evidence that they were not proper on rebuttal you can put it in.”
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Martin FASS, Plaintiff Appellant, v. R. G. RUEGG et al., Defendants-Appellees.
No. 17031.
United States Court of Appeals Sixth Circuit.
June 22, 1967.
Jacob A. Myers, Dayton, Ohio (Kus-worm &. Myers, Dayton, Ohio, on the brief), for appellant.
Roger J. Makley, Dayton, Ohio (Joseph P. Kinneary, U. S. Atty., Dayton, Ohio, on the brief) for appellees.
Before O’SULLIVAN and CELEBREZZE, Circuit Judges, and NEESE, District Judge.
Honorable O. G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation.
O’SULLIVAN, Circuit Judge.
On October 26, 1962, plaintiff-appellant, Martin Fass, was fired from his job as an aeronautical engineer for the Aeronautical Systems Division (ASD), a division of the Air Force Systems Command, located at Wright-Patterson Air Force Base, Ohio. Following review of his dismissal and denial of reinstatement by various administrative agencies, which we detail below, appellant brought suit in the United States District Court for the Southern District of Ohio, Western Division. His complaint sought reinstatement with back pay; the named defendants were military officers and officials of the agencies who ordered and reviewed plaintiff’s dismissal. The District Judge granted the defendants’ motion for summary judgment, dismissing the complaint. Plaintiff appealed to this Court. We affirm.
By letter dated September 18, 1962, plaintiff received a six and one-half page, single-spaced “Notice of Proposed Dismissal” from the chief officer of one of ASD’s engineering branches, charging that his work was inefficient: in particular, various reports he had submitted were technically incorrect, deviated from the scope of the assignments given to him, and had taken an excessive amount of time to prepare. He was also charged with displaying an improper job attitude in his approach to the tasks required of him and in his relationship with his superiors. These deficiencies were supported by illustrations setting out the standards applicable to plaintiff’s work and his departures therefrom. Plaintiff responded to the “Notice” in a 41 page letter, but upon determination that his reply did not adequately refute the charges made against him, he was dismissed from his employment on October 26, 1962.
Under Department of Air Force regulations, plaintiff had a right, which he exercised, to appeal his removal to the Commander of ASD. To facilitate this appeal an Ad Hoc Committee was established to hear testimony and receive exhibits pertinent to the charges made against plaintiff, and to advise the Commander accordingly of the evidence which supported or did not support them. After the Committee conducted its hearing it submitted its findings of fact to Major General R. G. Ruegg, Commander of ASD, who sustained the removal.
Since plaintiff was a veteran, he was entitled to appeal the Commander’s decision to the Chicago Regional Office of the United States Civil Service Commission (CSC). 5 U.S.C.A. § 863. This led to another hearing in Dayton, Ohio, on June 26, 1963, conducted by a representative of the Chicago Regional Office; once again the dismissal was sustained. Plaintiff next appealed to the CSC’s Board of Appeals and Review in Washington, D. C., which held in an opinion issued on January 23, 1964, that “Mr. Fass’s removal was procedurally adequate and for such cause as will promote the efficiency of the service.”
Plaintiff then brought suit in the District Court, urging various inadequacies in the above administrative proceedings and seeking reinstatement in his job with back pay. The District Judge noted that he could not consider the merits leading to plaintiff’s dismissal, found that the required procedural steps in the previous reviews of plaintiff’s removal had been complied with, and awarded summary judgment to the government.
Preliminarily, we advise our agreement with the District Judge’s statement of the limited role the courts are to play in cases where individuals dismissed from federal employment seek judicial review of their severance. Our recent decision in Baum v. Zuckert, 342 F.2d 145 (CA6, 1965), had to do with a suit by a discharged employee of the Air Force seeking reinstatement. The Civil Service Commission, as here, had upheld the discharge. Judge Phillips, speaking for this Court, took occasion to say;
“The function of a reviewing court in cases involving the discharge of civil service employees is a limited one. Powell v. Brannan, 91 U.S.App.D.C. 16, 196 F.2d 871, 873. The judicial function is to determine whether there has been substantial compliance with applicable procedures and statutes, and not to review the administrative determination as to the wisdom or good judgment of the agency in exercising its discretion. Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29, 32, cert. denied, 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137. The courts will not examine into the merits of the dismissal. Ellis v. Mueller, 108 U.S.App.D.C. 174, 280 F.2d 722, cert. denied, 364 U.S. 883, 81 S.Ct. 172, 5 L.Ed.2d 104; Green v. Baughman, 100 U.S.App.D.C. 187, 243 F.2d 610, 613, cert. denied, 355 U.S. 819, 78 S.Ct. 25, 2 L.Ed.2d 35.” 342 F.2d at 147.
We may not, therefore, pass on plaintiff’s claim before us that certain findings by the Ad Hoc Committee were not justified by the evidence, that plaintiff’s reports were accurately prepared and pertinent to the assignments given him, and that his “improper job attitude” was attributed to him by a jealous and biased supervisor. These declarations were all presented before the various administrative agencies, and were not persuasive enough to offset the testimony and documents, adverse to plaintiff, presented at the hearings. Similarly, we cannot consider the alleged error in the proceedings before the Ad Hoc Committee caused by the refusal to allow plaintiff to inquire into his supervisor’s supposed dislike for him. The development of the evidence before the Committee, which dealt mainly with the merits and deficiencies of the accused reports, was strictly within the discretion of the Committee’s chairman.
We turn consequently, to an examination of plaintiff’s allegations of procedural inadequacies at the different administrative levels. Plaintiff claims, initially, that the charges made against him in the “Notice of Proposed Dismissal” were not specific enough to provide an opportunity for him to respond to them. Air Force Manual (AFM) 40-1, chap. AF S-1.4, fl 4(c) does indeed require that when steps are taken to remove an employee, the statement of reasons underlying such action must be specific and detailed. But this requirement was met. The “Notice” sent to plaintiff consisted of six and one-half single-spaced typewritten pages, declaring precisely what had been required of plaintiff in his job, how he failed to meet his assigned tasks, and how errors in his past performances had been called to his attention. The document was replete with examples drawn from plaintiff’s work product which evidenced his deficiencies in one respect or another, and indicated that his job attitude — his unwillingness to cooperate with others, his refusal to carry out the assignments given him — compounded his employment. difficulties. Plaintiff, we believe, was; afforded fair notice of what he had to meet.
Plaintiff argues also that he was unable to reply properly to the “Notice” because he could not obtain an affidavit supporting his position from a John Cole, a physicist serving in a branch of ASD. The “Notice” did allow plaintiff to submit such documents. Allegedly, Cole was contacted by plaintiff’s supervisor who informed him that an action was pending against plaintiff; and Cole subsequently told plaintiff when the latter came to see him in late September, 1962, that he would only comment upon the merits of the accused reports through channels. Cole later asserted that plaintiff never asked him for an affidavit, but admitted he would not give plaintiff his views on plaintiff’s work at that time. Cole did testify, however, on behalf of plaintiff at the Ad Hoc Committee hearing. He recited that Pass’s reports were in his opinion acceptable in some respects, and was critical of them in others. We cannot say that the failure of plaintiff to obtain an affidavit from Cole prior to filing a reply to the “Notice” jeopardized his procedural rights in any meaningful way. Plaintiff had the right to seek affidavits to implement his reply, but it does not follow that Cole’s refusal to give him one, even though such refusal may have been instigated by a superior, in any way impaired the validity of the proceedings.
Plaintiff next asserts that the Commanding Officer of Wright-Patterson Air Force Base did not review the findings and procedures of the Ad Hoc Committee’s hearing. That is true, but the Commander of Wright-Patterson was not the relevant party who was to pass on the merits of plaintiff’s dismissal, as required by AFM 40-1, chap. A-12, § 5, t[ 6. ASD is a division of the Air Force Systems Command, headed by Major General R. G. Ruegg; and though a tenant of Wright-Patterson, ASD is not under the jurisdiction of Wright-Patterson’s base commander. In prosecuting an appeal in such situation,
“ * * * the [Ad Hoc] committee will prepare a complete record of the matter and will submit the original to the commander * * *. When civilian personnel services are furnished tenant or off-base activities, of the same or different command, not under the jurisdiction of the commander, the record will be forwarded to the commander through the service commander.” AFM 40-1, chap. A-12, § 5, IT 5.
In this case, the record, including the Ad Hoc Committee’s findings of fact, was forwarded to Major General Ruegg, who sustained the decision of removal.
On June 26, 1963, the day that the representative of the Chicago Regional Office conducted plaintiff’s second hearing, plaintiff was shown — but not given — a copy of the “Analysis of Issues” in his case. Air Force Regulations (AF M, 40-1, chap. A-2, § 2, f[ 11) state that such an analysis is included in the complete appellate record, “pertinent parts” of which are to be furnished a discharged employee who is prosecuting an appeal. Plaintiff argues that the failure to give him the “Analysis” before the hearing date prejudiced him, because he did not know what additional evidence he would have to produce to meet the specifications the “Analysis” contained. The regulations themselves are unclear, because of certain typographical errors, as to just what the “pertinent parts” of a record are that are to be given an employee; but Air Force Civilian Personnel letter 1-63, dated January 25, 1963, was circulated to clear up any confusion in the matter. The letter indicates that' a discharged employee, seeking reinstatement, is entitled to a transcript of the (Ad Hoc Committee) hearing and exhibits introduced thereat, and a copy of the hearing committee’s findings of fact as an inclbsure to the commander’s decision. Plaintiff received these items, and we consider that they constituted the “pertinent parts” of the record, as defined by the Air Force regulations.
Plaintiff further contends that the proceedings before the Chicago Regional Office repesentative were deficient in two other respects- — first, because the representative did not consider additional exhibits introduced before him and commented upon in subsequent briefs of plaintiff. The opinion of the Chicago Regional Office, however, fairly read, indicated that such new evidence was reviewed but found not to add anything of significance to what had already been adduced before the Ad Hoc Committee.
Second, plaintiff submits that the Chicago Regional Office of the Civil Service Commission erroneously limited the scope of its review. This is portrayed by the following recital in the final decision of the Board of Appeals and Review:
“The Chicago Regional Office obtained a copy of the agency’s first level appellate record, conducted a personal investigation, conducted a personal hearing, and received from representatives of both sides briefs and reply briefs with additional exhibits. Upon the record, thus assembled, the Regional Office decided to restrict its appellate review to the situation as it existed on the date of the removal. Apparently this was done on the erroneous assumption that the procedures of the agency’s first-level appellate review and the results of that review were not for consideration on appeal to the Commission.”
The Board of Appeals, however, proceeded to review the entire administrative record, including the area not fully examined by the Civil Service Commission’s Chicago Regional Office, saying “The Board of Appeals and Review has fully considered the appellate record as developed in the Chicago Region and as augmented by your [plaintiff’s counsel] notice of appeal submitted with your letter of October 3, 1963 * * *and ended the matter with the final administrative ruling:
“Upon the entire appellate record and for the reasons indicated above, the Board of Appeals and Review finds, as did the Regional Office, that Mr. Fass’s removal was procedurally adequate and for such cause as will promote the effciency of the service. The Regional Office decision to approve the removal action is affirmed.”
We consider, therefore, that if there was a technical error in the Regional Office’s limitation upon its review, it was of little significance. It did not impair the substantiality of the Civil Service Commission’s compliance with prescribed procedures.
As we have indicated, the District Judge dispatched this matter on the government’s motion for summary judgment. He had before him the administrative record of the removal and agency proceedings, and his decision was based on a review of those proceedings and not, as plaintiff contends, solely on the government’s pleadings and briefs.
Summary judgment is an appropriate means of resolving issues of law like the one presented here — whether there was substantial administrative compliance with applicable regulatory and statutory procedures. Seebach v. Cullen, 338 F.2d 663, 664, (CA9, 1964), cert. den. 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268.
The judgment of the District Court is affirmed.
. Sections 1361 and 1391, Title 28 USC were relied upon for jurisdiction and venue. Section 1361 provides that,
“The district courts shall have jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
Alan J. MISHLER, M.D., Plaintiff-Appellant, v. ST. ANTHONY’S HOSPITAL SYSTEMS, a private non-profit corporation; Daniel Dracon, M.D., individually, and as Emergency Room Director of St. Anthony’s Hospital Systems, Defendants-Appellees.
No. 79-2078.
United States Court of Appeals, Tenth Circuit.
Nov. 2, 1981.
Sidney W. DeLong of Dunn, Crane & Burg, Denver, Colo.,.for plaintiff-appellant.
Donald A. Klene of Casey, Klene, Horan & Wegs, Denver, Colo., for defendant-appellee St. Anthony’s Hosp. Systems.
Brian J. Lampert, Denver, Colo. (Mary Butler also of Johnson & Mahoney, Denver, Colo., on the brief), for defendant-appellee Daniel Dracon, M.D.
Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
Alan J. Mishler, M.D., appeals the district court’s dismissal for lack of jurisdiction of his antitrust claims against St. Anthony’s Hospital Systems (St. Anthony’s or hospital) and its emergency room director, Daniel Dracon, M.D. The sole issue on appeal is whether Dr. Mishler pleaded facts sufficient to meet the jurisdictional requirements of the Sherman Act, 15 U.S.C. §§ 1, 2.
Dr. Mishler, a neurosurgeon, claims that the defendants are part of a conspiracy to destroy competition and monopolize emergency neurosurgery in Colorado and portions of nearby states, the region served by St. Anthony’s, by restraining him and others from practicing emergency neurosurgery at the hospital. The defendants allegedly are accomplishing this goal by excluding Dr. Mishler and other neurosurgeons from the emergency room referral list. The complaint asserts that because of the hospital’s size and its sponsorship of the region’s only air ambulance service, the vast majority of patients from the geographic area requiring emergency neurosurgery go to St. Anthony’s, and that almost invariably patients’ families follow the emergency room physicians’ recommendation of a doctor. Thus, although Dr. Mishler has hospital staff privileges, he cannot practice emergency neurosurgery since he is not on the hospital’s referral list.
The amended complaint alleges that this conspiracy affects three channels of interstate commerce: commerce arising out of the interstate movement of patients; commerce in medical insurance from out-of-state sources; and commerce in supplies purchased from outside the state.
The district court granted a Fed.R.Civ.P. 12(b) motion to dismiss the complaint because Dr. Mishler failed to show that the conspiracy had the effect on interstate commerce the court believed necessary to support jurisdiction under the Sherman Act. The court reasoned that the restraint was local in character; the failure to refer patients to Dr. Mishler in no way would diminish the number of out-of-state patients utilizing the hospital, reduce the supplies purchased from outside the state, or decrease the revenues generated from emergency neurosurgical services. Thus, the district court required Dr. Mishler to show that the conspiracy diminished interstate commerce, and found that he had not done so. Dr. Mishler maintains that he does not have to prove that the conspiracy diminished interstate commerce. Further, inasmuch as he alleged a monopolization of the market, Dr. Mishler asserts that interstate commerce was necessarily adversely affected.
A federal court has jurisdiction under the Sherman Act if the plaintiff establishes either that the challenged activity occurs within the flow of interstate commerce or that the activity, although wholly local in nature, substantially affects interstate commerce. McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980); Crane v. Intermountain Health Care, Inc., 637 F.2d 715, 720 (10th Cir.1980) (on rehearing en banc). We need not decide whether jurisdiction may exist under the “in commerce” theory, since the allegations are so close to those in Crane v. Intermountain Health Care, Inc. that our interpretation of the “effects” test there controls our decision here.
In Crane we dispelled any notion that providing medical services is per se a local activity not subject to the Sherman Act. 637 F.2d at 725-26. In applying the “effects” test, this Court held that dismissing Dr. Crane’s suit for lack of jurisdiction was premature since his pleading alleged by implication that the purported conspiracy to boycott Crane’s services as a consultant in pathology affected three separate channels of interstate commerce. Id. at 725. At the pleading stage, Dr. Crane’s allegations were sufficient because we could not say beyond doubt that he could “prove no set of facts to show the required effect on interstate commerce.” Id. at 724.
The channels discussed in Crane are precisely those Dr. Mishler alleges in the instant case: (1) commerce in medical insurance from out-of-state sources, (2) commerce in the form of supplies from out-of-state sources, and (3) commerce in the form of interstate patients using the defendant hospital. Dr. Mishler’s complaint alleges a conspiracy to exclude competition and to monopolize a service affecting these three separate channels of commerce. Although Dr. Mishler must eventually prove a not insubstantial effect on interstate commerce, McLain v. Real Estate Bd. of New Orleans, 444 U.S. at 246, 100 S.Ct. at 511, his complaint merely must identify the relevant channels of interstate commerce and their relationship to the challenged activities. Crane, 637 F.2d at 725. The amended complaint has met this requirement.
Additionally, even at trial Dr. Mishler is not required to show that the flow of interstate commerce is diminished; an unreasonable burden on commerce may exist even though the anticompetitive conduct may increase interstate commerce. Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 132 & n. 14 (3d Cir.1978); P. Marcus, Antitrust Law and Practice 86 (1980). Simply by looking at the pleadings, we cannot say with certainty that Dr. Mishler will be unable to show the effect he alleges the challenged activities have on interstate commerce.
Additionally, we cannot say from the pleadings that this case involves a mere private wrong in which revenues were diverted from one set of doctors to another, and thus fails to demonstrate the requisite harm to the public. We assume that doctors do not all deliver identical services for identical fees. Restraints of trade and monopolization inherently involve injury to the public and competition. Almeda Mall, Inc. v. Houston Lighting & Power Co., 615 F.2d 343, 351 (5th Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980).
The case is reversed and remanded for further proceedings consistent herewith.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_state
|
56
|
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".
J. P. STEVENS & CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 78-1879.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 25, 1979.
Decided Feb. 27, 1979.
Homer L. Deakins, Jr., Ogletree, Deakins, Smoak & Stewart, Greenville, S.C., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., for respondent.
Jonathan R. Harkavy, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., for Amalgamated Clothing and Textile Workers Union.
Before BUTZNER, WIDENER and HALL, Circuit Judges.
PER CURIAM:
On December 13, 1978, the Amalgamated Clothing and Textile Workers Union filed a petition for review of an order entered by the National Labor Relations Board with the United States Court of Appeals for the Second Circuit. On December 14, 1978, J. P. Stevens & Co., Inc., filed in this court a petition for review of the same order. The parties question which court is the proper forum for review.
Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(f), grants a right of review to any party aggrieved by a final order of the Board. The process of review is initiated by the filing of a petition with the circuit court of appeals in the circuit where the unfair labor practice in question is alleged to have taken place or where the party resides or transacts business, or with the United States Court of Appeals for the District of Columbia. Review of administrative orders is governed by 28 U.S.C. § 2112(a) which provides that:
If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals.
Stevens contends that the Union filed its petition with the Second Circuit prematurely and that the Union’s filing was therefore invalid. The company urges us to consider its petition to be the “first instituted” proceeding within the meaning of § 2112(a).
Stevens has asked the court to compel discovery against both the Board and the Union in order that facts bearing on the jurisdiction of the court may be ascertained. Meanwhile, the Board has filed a certified list of record materials with the Second Circuit in accordance with the directive of § 2112(a) and has moved the court to transfer the instant review petition to the Second Circuit. Finally, the Union has moved the court for leave to intervene in support of the Board’s motion for transfer. During the pendency of these motions, the Board has supplied most of the information sought by Stevens in its motion to compel discovery. The company has therefore withdrawn its motion with respect to the Board.
The information furnished by the Board concerning notice to the parties of its decision raises serious questions regarding the priority of the Union’s petition. The consensus among those courts that have considered the question, however, is that the court of first filing should determine the validity of the petition filed in that court. Industrial Union Dept. v. Bingham, 187 U.S.App.D.C. 56, 59, 570 F.2d 965, 968 n. 4 (1977). Any other rule would create a risk of unseemly conflicts between courts should two or more circuits examine the question of which proceeding was first instituted and should they reach different conclusions. See Chatham Mfg. Co. v. NLRB, 404 F.2d 1116, 1118 (4th Cir. 1968). If the Second Circuit determines that the petition filed with it is invalid or if it otherwise decides that “[f]or the convenience of the parties in the interest of justice” the matter should be transferred, it is empowered under § 2112(a) to transfer the proceedings back to this court.
Accordingly, we transfer these proceedings, including the motions filed by the parties, to the Second Circuit.
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:
|
sc_petitioner
|
055
|
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.
LINKLETTER v. WALKER, WARDEN.
No. 95.
Argued March 11, 1965.
Decided June 7, 1965.
Euel A. Screios, Jr., argued the cause for petitioner. With him on the brief was Truman Hobbs.
Teddy W. Airhart, Jr., Assistant Attorney General of Louisiana, argued the cause for respondent. With him on the brief was Jack P. F. Gremillion, Attorney General.
H. Richard Uviller argued the cause for the National District Attorneys’ Association, as amicus curiae, urging affirmance. With him on the brief was Michael Juviler. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, Barry Mahoney and Thomas F. O’Hare, Jr., Assistant Attorneys General, H. Richard Uviller and Michael Juviler filed a supplementary memorandum on behalf of the National District Attorneys’ Association, as amicus curiae.
Mr. Justice Clark
delivered the opinion of the Court.
In Mapp v. Ohio, 367 U. S. 643 (1961), we held that the exclusion of evidence seized in violation of the search and seizure provisions of the Fourth Amendment was required of the States by the Due Process Clause of the Fourteenth Amendment. In so doing we overruled Wolf v. Colorado, 338 U. S. 25 (1949), to the extent that it failed to apply the exclusionary rule to the States. This case presents the question of whether this requirement operates retrospectively upon cases finally decided in the period prior to Mapp. The Court of Appeals for the Fifth Circuit held that it did not, 323 F. 2d 11, and we granted certiorari in order to settle what has become a most troublesome question in the administration of justice. 377 U. S. 930. We agree with the Court of Appeals.
The petitioner was convicted in a Louisiana District Court on May 28, 1959, of “simple burglary.” At the time of his arrest he had been under surveillance for two days as a suspect in connection with another burglary. He was taken to the police station, searched, and keys were taken from his person. After he was booked and placed in jail, other officers took his keys, entered and searched his home, and seized certain property and papers. Later his place of business was entered and searched and seizures were effected. These intrusions were made without a warrant. The State District Court held that the arresting officers had reasonable cause for the arrest under Louisiana law and finding probable cause to search as an incident to arrest it held the seizures valid. The Supreme Court of Louisiana affirmed in February 1960.
On June 19,1961, Mapp was announced. Immediately thereafter petitioner filed an application'for habeas corpus in the state court on the basis of Mapp. The writ being denied in the Louisiana courts, he then filed a like application in the United States District Court. After denial there he appealed and the Court of Appeals affirmed. It found the searches too remote from the arrest and therefore illegal but held that the constitutional requirement of exclusion of the evidence under Mapp was not retrospective. Petitioner has two points: (1) that the Court of Appeals erred in holding that Mapp was not retrospective; and (2) that even though Mapp be held not to operate retrospectively, the search in his case was subsequent to that in Mapp, and while his final conviction was long prior to our disposition of it, his case should nevertheless be governed by Mapp.
Initially we must consider the term “retrospective” for the purposes of our opinion. A ruling which is purely prospective does not apply even to the parties before the court. See, e. g., England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964). See also Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358 (1932). However, we are not here concerned with pure prospectivity since we applied the rule announced in Map-p to reverse Miss Mapp’s conviction. That decision has also been applied to cases still pending on direct review at the time it was rendered. Therefore, in this case, we are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.
I.
While to some it may seem “academic” it might be helpful to others for us to briefly outline the history and theory of the problem presented.
At common law there was no authority for the proposition that judicial decisions made law only for the future. Blackstone stated the rule that the duty of the court was not to “pronounce a new law, but to maintain and expound the old one.” 1 Blackstone, Commentaries 69 (15th ed. 1809). This Court followed that rule in Norton v. Shelby County, 118 U. S. 425 (1886), holding that unconstitutional action “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” At 442. The judge rather than being the creator of the law was but its discoverer. Gray, Nature and Sources of the Law 222 (1st ed. 1909). In the case of the overruled decision, Wolf v. Colorado, supra, here, it was thought to be only a failure at true discovery and was consequently never the law; while the overruling one, Mapp, was not “new law but an application of what is, and theretofore had been, the true law.” Shulman, Retroactive Legislation, 13 Encyclopaedia of the Social Sciences 355, 356 (1934).
On the other hand, Austin maintained that judges do in fact do something more than discover law; they make it interstitially by filling in with judicial interpretation the vague, indefinite, or generic statutory or common-law terms that alone are but the empty crevices of the law. Implicit in such an approach is the admission when a case is overruled that the earlier decision was wrongly decided. However, rather than being erased by the later overruling decision it is considered as an existing juridical fact until overruled, and intermediate cases finally decided under it are not to be disturbed.
The Blackstonian view ruled English jurisprudence and cast its shadow over our own as evidenced by Norton v. Shelby County, supra. However, some legal philosophers continued to insist that such a rule was out of tune with actuality largely because judicial repeal ofttime did “work hardship to those who [had] trusted to its existence.” Cardozo, Address to the N. Y. Bar Assn., 55 Rep. N. Y. State Bar Assn. 263, 296-297 (1932). The Austinian view gained some acceptance over a hundred years ago when it was decided that although legislative divorces were illegal and void, those previously granted were immunized by a prospective application of the rule of the case. Bingham v. Miller, 17 Ohio 445 (1848). And as early as 1863 this Court drew on the same concept in Gelpcke v. Dubuque, 1 Wall. 175 (1863). The Supreme Court of Iowa had repeatedly held that the Iowa Legislature had the power to authorize municipalities to issue bonds to aid in the construction of railroads. After the City of Dubuque had issued such bonds, the Iowa Supreme Court reversed itself and held that the legislature lacked such power. In Gelpcke, which arose after the overruling decision, this Court held that the bonds issued under the apparent authority granted by the legislature were collectible. “However we may regard the late [overruling] case in Iowa as affecting the future, it can have no effect upon the past.” At 206. The theory was, as Mr. Justice Holmes stated in Kuhn v. Fairmont Coal Co., 215 U. S. 349, 371 (1910), “that a change of judicial decision after a contract has been made on the faith of an earlier one the other way is a change of the law.” And in 1932 Mr. Justice Cardozo in Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, applied the Austinian approach in denying a federal constitutional due process attack on the prospective application of a decision of the Montana Supreme Court. He said that a State “may make a choice for itself between the principle of forward operation and that of relation backward.” At 364. Mr. Justice Cardozo based the rule on the avoidance of “injustice or hardship” citing a long list of state and federal cases supporting the principle that the courts had the power to say that decisions though later overruled “are law none the less for intermediate transactions.” At 364. Eight years later Chief Justice Hughes in Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940), in discussing the problem made it clear that the broad statements of Norton, supra, “must be taken with qualifications.” He reasoned that the actual existence of the law prior to the determination of unconstitutionality “is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” He laid down the rule that the “effect of the subsequent ruling as to invalidity may have to be considered in various aspects.” At 374.
One form of limited retroaction which differs somewhat from the type discussed above is that which was established in United States v. Schooner Peggy, 1 Cranch 103 (1801). There, a schooner had been seized under an order of the President which commanded that any armed French vessel found on the high seas be captured. An order of condemnation was entered on September 23, 1800. However, while the case was pending before this Court the United States signed an agreement with France providing that any property captured and not “definitively condemned” should be restored. Chief Justice Marshall said:
“It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied... [and] where individual rights... are sacrificed for national purposes... the court must decide according to existing laws, and if it be necessary to set aside a judgment... which cannot be affirmed but in violation of law, the judgment must be set aside.” At 110.
This same approach was subsequently applied in instances where a statutory change intervened, Carpenter v. Wabash R. Co., 309 U. S. 23 (1940); where a constitutional amendment was adopted, United States v. Chambers, 291 U. S. 217 (1934); and where judicial decision altered or overruled earlier case law, Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941).
Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, Schooner Peggy, supra,'and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set “principle of absolute retroactive invalidity” but depends upon a consideration of “particular relations... and particular conduct... of rights claimed to have become vested, of status, of prior determinations deemed to have finality” ; and “of public policy in the light of the nature both of the statute and of its previous application.” Chicot County Drainage Dist. v. Baxter State Bank, supra, at 374.
That no distinction was drawn between civil and criminal litigation is shown by the language used not only in Schooner Peggy, supra, and Chicot County, supra, but also in such cases as State v. Jones, 44 N. M. 623, 107 P. 2d 324 (1940) and James v. United States, 366 U. S. 213 (1961). In the latter case, this Court laid down a prospective principle in overruling Commissioner v. Wilcox, 327 U. S. 404 (1946), “in a manner that will not prejudice those who might have relied on it.” At 221. Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. And “there is much to be said in favor of such a rule for cases arising in the future.” Mosser v. Darrow, 341 U. S. 267, at 276 (dissenting opinion of Black, J.).
While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules, there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, “We think the federal constitution has no voice upon the subject.”
Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment’s prohibitions as to unreasonable searches and seizures. Rather than “disparaging” the Amendment we but apply the wisdom of Justice Holmes that “[t]he life of the law has not been logic: it has been experience.” Holmes, The Common Law 5 (Howe ed. 1963).
II.
Since Weeks v. United States, 232 U. S. 383 (1914), this Court has adhered to the rule that evidence seized by federal officers in violation of the Fourth Amendment is not admissible at trial in a federal court. In 1949 in Wolf v. Colorado, supra, the Court decided that while the right to privacy — “the core of the Fourth Amendment” — was such a basic right as to be implicit in “the concept of ordered liberty” and thus enforceable against the States through the Fourteenth Amendment, “the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.” At 27-28.
The Court went on to say that the federal exclusionary rule was not “derived from the explicit requirements of the Fourth Amendment.... The decision was a matter of judicial implication.” At 28. Since “we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right.” At 29. While granting that “in practice” the exclusion of evidence might be “an effective way of deterring unreasonable searches,” the Court concluded that it could not “condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.” At 31. The continuance of the federal exclusionary rule was excused on the ground that the reasons for it were more “compelling” since public opinion in the community could be exerted against oppressive conduct by local police far more effectively than it could throughout the country.
The “asymmetry which Wolf imported into the law,” Mapp v. Ohio, supra, at 670 (concurring opinion of Douglas, J.), was indicated by a decision announced on the same day, Lustig v. United States, 338 U. S. 74 (1949), holding that evidence given to federal authorities “on a silver platter” by state officers was not excludable in federal trials. At 79. Wolfs holding, in conjunction with the “silver platter” doctrine of Lustig, provided wide avenues of abuse in the Weeks’ exclusionary rule in the federal courts. Evidence seized in violation of the Fourth Amendment by state officers was turned over to federal officers and admitted in evidence in prosecutions in the federal courts. In 1951 Wolf was strengthened by Stef-anelli v. Minard, 342 U. S. 117, in which the Court refused to permit a federal court to enjoin the use of evidence in a state criminal proceeding that had been illegally seized by state officers. In 1952, however, the Court could not tolerate the procedure involved in Rochin v. California, 342 U. S. 165, where morphine capsules pumped from the accused’s stomach by state officers were admitted in evidence in a state court. It struck down the conviction on due process grounds under the Fourteenth Amendment because the action was shocking to the conscience. In 1954 came Irvine v. California, 347 U. S. 128, in which the State admitted evidence procured via a microphone secreted clandestinely by state police in the accused’s bedroom. These “incredible” circumstances did not sufficiently shock the conscience of the Court into applying the Rochin test. Instead the case went off on the doctrine of Wolf. Mr. Justice Jackson in announcing the judgment of the Court overruled those who urged that Wolf “applies only to searches and seizures which produce on our minds a mild shock, while if the shock is more serious, the states must exclude the evidence or we will reverse the conviction.” At 133-134. He strongly reaffirmed Wolf stating:
“Now that the Wolf doctrine is known to them, state courts may wish further to reconsider their eviden-tiary rules. But to upset state convictions even before the states have had adequate opportunity to adopt or reject the rule would be an unwarranted use of federal power.” At 134.
The opinion in dealing with the operation of the exclusionary rule said that it “must be remembered that petitioner is not invoking the Constitution to prevent or punish a violation of his federal right recognized in Wolf.... He is invoking it only to set aside his own conviction of crime.... Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant.... [It] does nothing to protect innocent persons who are the victims of illegal but fruitless searches.” At 136. Admitting the futility of other remedies available to the victims of illegal searches, Mr. Justice Jackson and the then Chief Justice suggested that the “Clerk of this Court should be directed to forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States” with a view to prosecution under the Civil Rights Act, 62 Stat. 696, 18 U. S. C. §242 (1958 ed.). In concurring in the judgment in Irvine the writer of this opinion indicated his displeasure with Wolf but observed that since the Court “still refuses today” to overrule it he felt bound by Wolf but had hopes that “strict adherence to the tenor of that decision may produce needed converts for its extinction.” At 138-139. The Court continued to broaden the rule of exclusion when, in 1956, it held that a federal agent might be enjoined from transferring to state authorities evidence that he had seized on an illegal federal warrant, or testifying with regard to it in a state prosecution. Rea v. United States, 350 U. S. 214. In 1960 the Court’s dissatisfaction with the “silver platter” doctrine, Lustig v. United States, supra, led to its rejection in the leading case of Elkins v. United States, 364 U. S. 206. The factual situation being the converse of Rea v. United States, supra, the Court tightened the noose of exclusion in order to strangle completely the use in the federal courts of evidence illegally seized by state agents. It was in Elkins that the Court emphasized that the exclusionary rule was “calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” At 217.
Mapp was announced in 1961. The Court in considering “the current validity of the factual grounds upon which Wolf was based” pointed out that prior to Wolf “almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it... have wholly or partly adopted or adhered to the Weeks rule.” At 651. We then cited California as typical of those adopting the rule since Wolf. It was “ 'compelled to reach that conclusion,’ ” we said, quoting California’s highest court, “ ‘because other remedies have completely failed to secure compliance with the constitutional provisions....’ People v. Cahan, 44 Cal. 2d 434....” We went on to find that “[t]he experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. California _” At 652-653. In discussing People v. Defore, 242 N. Y. 13, 150 N. E. 585, upon which Wolf heavily relied, we concluded that “Likewise, time has set its face against what Wolf called the ‘weighty testimony’ of People v. Defore... ‘that [t]he Federal rule as it stands is either too strict or too lax.’ 242 N. Y., at 22.” At 653. We concluded that “the force of that reasoning has been largely vitiated by later decisions of this Court,” at 653, which had closed all of the courtroom doors “open to evidence secured by official lawlessness...” save that of the state courts. At 655. That door was closed by Mapp.
In recapitulation, we found in Mapp that Wolf rested on these grounds. First, that the “contrariety of views of the States” as to the use of the exclusionary rule was “particularly impressive.” Second, “ ‘other means of protection’ [of Fourth Amendment rights] ha[d] been afforded” than the exclusionary rule. And, third, the “weighty testimony” of People v. Defore, supra. As to the first, we found the lineup of the States as to the exclusionary rule had shifted to where a majority favored it; as to the second, that the other means of protection had proven to be
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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