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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. 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".
John A. WHITE, Appellant, v. UNITED STATES of America, Appellee.
No. 18355.
United States Court of Appeals District of Columbia Circuit.
June 30, 1965.
McGowan, Circuit Judge, dissented.
Mr. Lloyd N. Cutler, Washington, D. C., with whom Mr. John Roderick Heller, III (both appointed by this court), Washington, D. C., was on the brief, for appellant.
Mr. Martin R. Hoffmann, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Washington and McGowan, Circuit Judges.
BAZELON, Chief Judge:
In this petition for rehearing, appellant urges that our opinion of September 17, 1964 shows that we have misread the record in affirming his conviction for first degree murder. That opinion assumed, without deciding, that appellant’s statement to the police after arrest was inadmissible in the Government’s case in chief. But we held that statement admissible on Government rebuttal to impeach appellant’s self-defense claim for the reasons that (1) appellant “made the first reference to his statement” in his testimony, and (2) “defense counsel did not object to the prosecutor’s subsequent use of that statement * *
Appellant now asserts, and we agree, that these reasons do not survive a closer reading of the record. The statement was first mentioned in the presence of the jury during the prosecutor’s cross-examination of appellant, in the following colloquy:
Q. I asked you, Mr. Defendant, that as soon as you had settled down enough after this excitement of the police officers coming in with their drawn guns that you could think, you told the police then all about this, that you told us.
A. I didn’t tell the police anything right then.
Q. I didn’t say right there.
I said you told this to the police, didn’t you, about his coming at you with his hand in his pocket.
A. I don’t know whether I told the police that or what I told the police at the time. I made a statement at headquarters, if that is what you mean.
Q. Fine. I am glad you mentioned that.
The prosecutor then asked, “In that statement to the police at headquarters, which you have just mentioned, did you tell them about this man advancing on you with his hand in his pocket?” Appellant answered that he did not remember. At the prosecutor’s request, the court instructed appellant to read the statement to himself to refresh his memory. The question was then repeated, and appellant answered, “I don’t see it in the statement.”
Our previous opinion found that appellant’s testimony, “I made a statement at headquarters, if that is what you mean” justified the prosecutor’s introduction of the statement to counter the “likely inference — an erroneous one— * * * [that the statement] did contain a complete account of his version of the shooting.” But it is evident from the record that the prosecutor purposely elicited from appellant this reference to his statement, since the trial court had earlier ruled, over defense counsel’s objections, that the statement could be used for impeachment.
Another incident in appellant’s testimony is now urged by our dissenting brother as grounds for affirmance. Appellant testified on direct examination that, at his arrest, “I asked the officer could I explain to them what happened. They made me sit down in the chair and told me not to say anything.” The dissent construes this testimony as an attempt by appellant “to leave with the jury the inference that he would have given the police a contemporaneous version of what had happened if they had let him do so” and the further inference that such statement would have supported his self-defense claim. In some circumstances, otherwise inadmissible evidence may be used to contradict a defendant’s “affirmative resort to perjurious testimony.” Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954). But Walder does not authorize the use of inadmissible evidence to contradict such remote inferences as our dissenting brother finds here. Moreover, the Government did impeach this inference through the testimony of two arresting officers that appellant had spoken freely when arrested and had made no claim of self defense. Thus, unlike Walder, the inadmissibility of appellant’s statement did not ‘‘provide him [self] with a shield against contradiction of his untruths” and he could not rely “on the Government’s disability to challenge his credibility” on this point. Ibid.
The fact that appellant’s statement might impeach his defense more effectively than the police testimony is no justification for admitting it. A defendant “must be free to deny all the elements of the ease against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.” Inadmissible “evidence is not rendered admissible merely because the defendant testifies in his own behalf.” Appellant made no “ ‘sweeping claims’ going far beyond the crime charged” nor was the impeaching use of the statement restricted “to ‘lawful proper acts’ which are purely ‘collateral matters’ to the issues at bar.” Rather, the use of the statement here “bore on the central issue” of the case. Appellant admitted the shooting, but claimed he acted in self-defense. The Government used appellant’s statement directly to contradict his only defense. “To permit the Government to introduce illegally obtained statements which bear directly on a defendant’s guilt or innocence in the name of ‘impeachment’ would seriously jeopardize the important substantive policies and functions underlying the established exclusionary rules.” We vacate our previous affirmance and remand the record for determination of the circumstances in which appellant’s statement was obtained by the police. If that determination reveals that the statement was inadmissible for the Government’s case in chief, the conviction is reversed for a new trial.
So ordered.
. Walder v. United States, supra, 347 U.S. at 65, 74 S.Ct. at 356.
. Johnson & Stewart v. United States, 120 U.S.App.D.C.-, 344 F.2d 163, at p. 165, decided Oct. 15, 1964.
. Walder v. United States, supra, 347 U.S. at 65, 74 S.Ct. 354.
. Tate v. United States, 109 U.S.App.D.C. 13, 16-17, 283 F.2d 367, 380-381 (1960).
. Bailey v. United States, 117 U.S.App. D.C. 241, 245 n. 3, 328 F.2d 542, 546 n. 3, cert. denied, 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964) (dissenting opinion of Judge Wright, approved in Johnson & Stewart v. United States, supra note 2, 344 F.2d at p. 165.)
. The dissent asserts, without specification, that the statement was admitted only “under carefully limited conditions.” The sole “limitation” we perceive is that appellant’s full statement was not read to the jury. But appellant’s testimony, in response to the prosecutor’s questioning, that his statement did not mention self-defense was as damaging as if the statement had been admitted in evidence.
. Johnson & Stewart v. United States supra note 2, 344 F.2d at p. 166.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Victor TORRES RIVERA, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.
No. 5050.
United States Court of Appeals First Circuit.
April 26, 1956.
Victor Torres Rivera, pro se, on brief for appellant.
Luis Domingo Miranda, Asst. U. S. Atty., San Juan, P. R., with whom Rubén Rodríguez Antongiori, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and BIGGS and WOODBURY, Circuit Judges.
Judge BIGGS, a circuit judge of the Third Circuit, was designated to sit in the Court of Appeals for the First Circuit by Mr. Chief Justice WARREN.
PER CURIAM.
The appeal at bar was brought by Rivera from an order of the court below denying a motion made by him, pursuant to Section 2255, Title 28 U.S.C., to correct a sentence allegedly erroneously imposed upon him in the court below as a second offender against the Narcotics Law. See Sections 2550, 2553, 2557(b) (1), 2591(a) and 2596 of the Internal Revenue Code of 1939, Title 26 U.S.C. See also the Act of November 2, 1951, 65 Stat. 767, 21 U.S.C.A. § 174.
In the case at bar Rivera was charged in an indictment consisting of a single count with having sold two capsules of heroin in San Juan, Puerto Rico, on or about November 19, 1951. On January 24, 1952, he appeared in court, was duly arraigned and pleaded guilty. The imposition of sentence was postponed until February 8, 1952.
Section 2557(b)(1), Title 26 U.S.C., provides in pertinent part: “After conviction, but prior to pronouncement of sentence, the court shall be advised by the United States attorney whether the conviction is the offender’s first or a subsequent offense. If it is not a first offense, the United States attorney shall file an information setting forth the prior convictions. * * *” Rivera contends that the information setting out his previous conviction was not “filed” at the time the sentence in the instant case was imposed upon him as a recidivist because the information is stamped “Received & Filed Feb 8 1952 Office Clerk U.S. Dist. Ct. San Juan, P.R. 5 P.M.” He asserts, therefore, that he was illegally sentenced by the court in the instant ease and that his sentence should be “corrected.” No question of identity is presented.
Rivera’s entire ease is based upon what he alleges ta-have been the filing time of the informaiifci. as to this previous conviction. H^Hte^s that the time was 5 P.M. on Fefmiary 8th. He states, and this is doubtless true, that at that hour on February 8th he was having his supper in prison. He is, however, merely quibbling. It appears from the certificate of the Clerk of Court that the sentencing of Rivera was taken up at or after 2 P.M. on Friday, February 8, 1952, and that there was before the court at that time an information relating to the prior conviction and sentencing of Rivera, and that it was the “usual custom * * * for the clerk to bring all papers back from the courtroom to the clerk’s office, where the stamp is affixed on any document filed in open court.” It also appears from the clerk’s “Docket Entries,” that the information charging Rivera with prior conviction of the Narcotics Law was filed and that a “Copy issued defendant,” and that the “Defendant admits charge and affirms identity.”
We need not pursue the matter further. We are convinced, as apparently was the court below, that in the information stating Rivera’s former offense and conviction was before the court below prior to the sentencing in the instant case, that Rivera was fully aware of this fact and confessed his identity, and that whether the information was marked “filed” by the Clerk at the time it was before the court prior to sentence is immaterial. The better practice would, of course, be to have such a document marked at the time it was received by the Clerk, rather than stamping it at a later hour when the Clerk returns from court to her office. In any event the error is harmless, if error it was. See Rule 52(a), Fed.Rules Crim.Proc., 18 U.S.C., and Knight v. United States, 9 Cir., 225 F.2d 55, certiorari denied 1955, 350 U.S. 890, 76 S.Ct. 148.
The order of the court below denying Rivera’s motion made pursuant to Section 2255, Title 28 U.S.C., is affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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sc_respondentstate
|
25
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
ROEMER et al. v. BOARD OF PUBLIC WORKS OF MARYLAND et al.
No. 74-730.
Argued February 23, 1976
Decided June 21, 1976
BlacemuN, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Powell, J., joined. White, J., filed an opinion concurring in the judgment, in which RehNQUist, J., joined, post, p. 767. BreNNAN, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 770. Stewart, J., post, p. 773, and SteveNS, J., post, p. 775, filed dissenting opinions.
Lawrence S. Oreenwald argued the cause for appellants. With him on the brief was Melvin L. Wulf.
George A. Nilson, Assistant Attorney General of Maryland, and Paul R. Connolly argued the cause for appellees. With Mr. Nilson on the brief for appellees Board of Public Works of Maryland et al. were Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General. With Mr. Connolly on the brief for appellees Loyola College et al. were Charles H. Wilson and John C. Evelius. George W. Constable filed a brief for appellee College of Notre Dame of Maryland, Inc. George T. Tyler and Robert V. Barton, Jr., filed a brief for appellee St. Joseph College at Emmits-burg, Maryland, Inc.
Mr. Justice Blackmun
announced the judgment of the Court and delivered an opinion in which The Chief Justice and Mr. Justice Powell joined.
We are asked once again to police the constitutional boundary between church and state. Maryland, this time, is the alleged trespasser. It has enacted a statute which, as amended, provides for annual noncategorical grants to private colleges, among them religiously affiliated institutions, subject only to the restrictions that the funds not be used for “sectarian purposes.” A three-judge District Court, by a divided vote, refused to enjoin the operation of the statute, 387 F. Supp. 1282 (Md. 1974), and a direct appeal has been taken to this Court pursuant to 28 U. S. C. § 1253.
I
The challenged grant program was instituted by Laws of 1971, c. 626, and is now embodied in Md. Ann. Code, Art. 77A, §§ 65-69 (1975). It provides funding for “any private institution of higher learning within the State of Maryland,” provided the institution is accredited by the State Department of Education, was established in Maryland prior to July 1, 1970, maintains one or more “associate of arts or baccalaureate degree” programs, and refrains from awarding “only seminarian or theological degrees.” §§ 65-66. The aid is in the form of an annual fiscal year subsidy to qualifying colleges and universities. The formula by which each institution’s entitlement is computed has been changed several times and is not independently at issue here. It now provides for a qualifying institution to receive, for each full-time student (excluding students enrolled in seminarian or theological academic programs), an amount equal to 15% of the State’s per-full-time-pupil appropriation for a student in the state college system. § 67. As first enacted, the grants were completely unrestricted. They remain noncategorical in nature, and a recipient institution may put them to whatever use it prefers, with but one exception. In 1972, following this Court’s decisions in Lemon v. Kurtzman, 403 U. S. 602 (1971) (Lemon I), and Tilton v. Richardson, 403 U. S. 672 (1971), § 68A was added to the statute by Laws of 1972, c. 534. It provides:
“None of the moneys payable under this subtitle shall be utilized by the institutions for sectarian purposes.”
The administration of the grant program is entrusted to the State’s Board of Public Works “assisted by the Maryland Council for Higher Education.” These bodies are to adopt “criteria and procedures... for the implementation and administration of the aid program.” They are specifically authorized to adopt “criteria and procedures” governing the method of application for grants and of their disbursement, the verification of degrees conferred, and the “submission of reports or data concerning the utilization of these moneys by [the aided] institutions.” § 68. Primary responsibility for the program rests with the Council for Higher Education, an appointed commission which antedates the aid program, which has numerous other responsibilities in the educational field, and which has derived from these a “considerable expertise as to the character and functions of the various private colleges and universities in the State.” 387 F. Supp., at 1285.
The Council performs what the District Court described as a “two-step screening process” to insure compliance with the statutory restrictions on the grants. First, it determines whether an institution applying for aid is eligible at all, or is one “awarding primarily theological or seminary degrees.” Several applicants have been disqualified at this stage of the process. Id., at 1289, 1296. Second, the Council requires that those institutions that are eligible for funds not put them to any sectarian use. An application must be accompanied by an affidavit of the institution's chief executive officer stating that the funds will not be used for sectarian purposes, and by a description of the specific nonsectarian uses that are planned. These may be changed only after written notice to the Council. By the end of the fiscal year the institution must file a “Utilization of Funds Report” describing and itemizing the use of the funds. The chief executive officer must certify the report and also file his own “Post-expenditure Affidavit,” stating that the funds have not been put to sectarian uses. The recipient institution is further required to segregate state funds in a “special revenue account” and to identify aided nonsectarian expenditures separately in its budget. It must retain “sufficient documentation of the State funds expended to permit verification by the Council that funds were not spent for sectarian purposes." Any question of sectarian use that may arise is to be resolved by the Council, if possible, on the basis of information submitted to it by the institution and without actual examination of its books. Failing that, a “verification or audit” may be undertaken. The District Court found that the audit would be “quick and non-judgmental,” taking one day or less. Id., at 1296.
In 1971, $1.7 million was disbursed to 17 private institutions in Maryland. The disbursements were under the statute as originally enacted, and were therefore not subject to § 68A’s specific prohibition on sectarian use. Of the 17 institutions, five were church related; and these received $520,000 of the $1.7 million. A total of $1.8 million was to be awarded to 18 institutions in 1972, the second year of the grant program; of this amount, $603,000 was to go to church-related institutions. Before disbursement, however, this suit, challenging the grants as in violation of the Establishment Clause of the First Amendment, was filed. The $603,-000 was placed in escrow and was so held until after the entry of the District Court’s judgment on October 21, 1974. These and subsequent awards, therefore, are subject to § 68A and to the Council's procedures for insuring compliance therewith.
Plaintiffs in this suit, appellants here, are four individual Maryland citizens and taxpayers. Their complaint sought a declaration of the statute's invalidity, an order enjoining payments under it to church-affiliated institutions, and a declaration that the State was entitled to recover from such institutions any amounts already disbursed. App. 10. In addition to the responsible state officials, plaintiff-appellants joined as defendants the five institutions they claimed were constitutionally ineligible for this form of aid: Western Maryland College, College of Notre Dame, Mount Saint Mary’s College, Saint Joseph College, and Loyola College. Of these, the last four are affiliated with the Roman Catholic Church; Western Maryland, was a Methodist affiliate. The District Court ruled with respect to all five. Western Maryland, however, has since been dismissed as a defendant-appellee. We are concerned, therefore, only with the four Roman Catholic affiliates.
After carefully assessing the role that the Catholic Church plays in the fives of these institutions, a matter to which we return in greater detail below, and applying the three-part requirement of Lemon I, 403 U. S., at 612-613, that state aid such as this have a secular purpose, a primary effect other than the advancement of religion, and no tendency to entangle the State excessively in church affairs, the District Court ruled that the amended statute was constitutional and was not to be enjoined. The court considered the original, unamended statute to have been unconstitutional under Lemon I, but it refused to order a refund of amounts theretofore paid out, reasoning that any refund was barred by the decision in Lemon v. Kurtzman, 411 U. S. 192 (1973) (Lemon II). The District Court therefore denied all relief. This appeal followed. We noted probable jurisdiction. 420 U. S. 922 (1975).
II
A system of government that makes itself felt as pervasively as ours could hardly be expected never to cross paths with the church. In fact, our State and Federal Governments impose certain burdens upon, and impart certain benefits to, virtually all our activities, and religious activity is not an exception. The Court fyas enforced a scrupulous neutrality by the State, as among religions, and also as between religious and other activities, but a hermetic separation of the two is an impossibility it has never required. It long has been established, for example, that the State may send a cleric, indeed even a clerical order, to perform a wholly secular task. In Bradfield v. Roberts, 175 U. S. 291 (1899), the Court upheld the extension of public aid to a corporation which, although composed entirely of members of a Roman Catholic sisterhood acting “under the auspices of said church,’ id., at 297, was limited by its corporate charter to the secular purpose of operating a charitable hospital.
And religious institutions need not be quarantined from public benefits that are neutrally available to all. The Court has permitted the State to supply transportation for children to and from church-related as well as public schools. Everson v. Board of Education, 330 U. S. 1 (1947). It has done the same with respect to secular textbooks loaned by the State on equal terms to students attending both public and church-related elementary schools. Board of Education v. Allen, 392 U. S. 236 (1968). Since it had not been shown in Allen that the secular textbooks would be put to other than secular purposes, the Court concluded that, as in Everson, the State was merely “extending the benefits of state laws to all citizens.” Id., at 242. Just as Bradfield dispels any notion that a religious person can never be in the State’s pay for a secular purpose, Everson and Allen put to rest any argument that the State may never act in such a way that has the incidental effect of facilitating religious activity. The Cburt has not been blind to the fact that in aiding a religious institution to perform a secular task, the State frees the institution’s resources to be put to sectarian ends. If this were impermissible, however, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair. The Court never has held that religious activities must be discriminated against in this way.
Neutrality is what is required. The State must confine itself to secular objectives, and neither advance nor impede religious activity. Of course, that principle is more easily stated than applied. The Court has taken the view that a secular purpose and a facial neutrality may not be enough, if in fact the State is lending direct support to a religious activity. The State may not, for example, pay for what is actually a religious education, even though it purports to be paying for a secular one, and even though it makes its aid available to secular and religious institutions alike. The Court also has taken the view that the State’s efforts to perform a secular task, and at the same time avoid aiding in the performance of a religious one, may.not lead it into such an intimate relationship with religious authority that it appears either tb be sponsoring or to be excessively interfering with that authority. In Lemon I as noted above, the Court distilled these concerns into a three-prong test, resting in part on prior case law, for the constitutionality of statutes affording state aid to church-related schools:
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion... ; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” 403 U. S., at 612-613.
At issue in Lemon I were two state-aid plans, a Rhode Island program to grant a 15% supplement to the salaries of private, church-related school teachers teaching secular courses, and a Pennsylvania program to reimburse private church-related schools for the entire cost of secular courses also offered in public schools. Both failed the third part of the test, that of “excessive government entanglement.” This part the Court held in turn required a consideration of three factors: (1) the character and purposes of the benefited institutions, (2) the nature of the aid provided, and (3) the resulting relationship between the State and the religious authority. Id., at 615. As to the first of these, in reviewing the Rhode Island program, the Court found that the aided schools, elementary and secondary, were characterized by “substantial religious activity and purpose.” Id., at 616. They were located near parish churches. Religious instruction was considered “part of the total educational process.” Id., at 615. Religious symbols and religious activities abounded. Two-thirds of the teachers were nuns, and their operation of the schools was regarded as an “ 'integral part of the religious mission of the Catholic Church.' ” Id., at 616. The schooling came at an impressionable age. The form of aid also cut against the programs. Unlike the textbooks in Allen and the bus transportation in Everson, the services of the state-supported teachers could not be counted on to be purely secular. They were bound to mix religious teachings with secular ones, not by conscious design, perhaps, but because the mixture was inevitable when teachers (themselves usually Catholics) were “employed by a religious organization, subject to the direction and discipline of religious authorities, and work[ed] in a system dedicated to rearing children in a particular faith.” Id., at 618. The State's efforts to supervise and control the teaching of religion in supposedly secular classes would therefore inevitably entangle it excessively in religious affairs. The Pennsylvania program similarly foundered.
The Court also pointed to another kind of church-state entanglement threatened by the Rhode Island and Pennsylvania programs, namely, their “divisive political potential.” Id., at 622. They represented “successive and very likely permanent annual appropriations that benefit relatively few religious groups.” Id., at 623. Political factions, supporting and opposing the programs, were bound to divide along religious lines. This was “one of the principal evils against which the First Amendment was intended to protect.” Id., at 622. It was stressed that the political divisiveness of the programs was “aggravated... by the need for continuing annual appropriations.” Id., at 623.
In Tilton v. Richardson, 403 U. S. 672 (1971), a companion case to Lemon I, the Court reached the contrary-result. The aid challenged in Tilton was in the form of federal grants for the construction of academic facilities at private colleges, some of them church related, with the restriction that the facilities not be used for any sectarian purpose. Applying Lemon I’s three-part test, the Court found the purpose of the federal aid program there under consideration to be secular. Its primary effect was not the advancement of religion, for sectarian use of the facilities was prohibited. Enforcement of this prohibition was made possible by the fact that religion did not so permeate the defendant colleges that their religious and secular functions were inseparable. On the contrary, there was no evidence that religious activities took place in the funded facilities. Courses at the colleges were “taught according to the academic requirements intrinsic to the subject matter,” and “an atmosphere of academic freedom rather than religious indoctrination” was maintained. 403 U. S., at 680-682 (plurality opinion).
Turning to the problem of excessive entanglement, the Court first stressed the character of the aided institutions. It pointed to several general differences between college and precollege education: College students are less susceptible to religious indoctrination; college courses tend to entail an internal discipline that inherently limits the opportunities for sectarian influence; and a high degree of academic freedom tends to prevail at the college level. It found no evidence that the colleges in Tilton varied from this pattern. Though controlled and largely populated by Roman Catholics, the colleges were hot restricted to adherents of that faith. No religious services were required to be attended. Theology courses were mandatory, but they were taught in an academic fashion, and with treatment of beliefs other than Roman Catholicism. There wére no attempts to proselytize among students, and principles of academic freedom prevailed. With colleges of this character, there was little risk that religion would seep into the teaching of secular subjects, and the state surveillance necessary to separate the two, therefore, was diminished. The Court next looked to the type of aid provided, and found it to be neutral or nonideological in nature. Like the textbooks and bus transportation in Allen and Everson, but unlike the teachers’ services in Lemon I, physical facilities were capable of being restricted to secular purposes. Moreover, the construction grant was a one-shot affair, not involving annual audits and appropriations.
As for political divisiveness, no “continuing religious aggravation” over the program had been shown, and the Court reasoned that this might be because of the lack of continuity in the church-state relationship, the character and diversity of the colleges, and the fact that they served a dispersed student constituency rather than a local one. “ [C] umulatively,” all these considerations persuaded the Court that church-state entanglement was not excessive. 403 U. S., at 684-689.
In Hunt v. McNair, 413 U. S. 734 (1973), the challenged aid was also for the construction of secular college facilities, the state plan being one to finance the construction by revenue bonds issued through the medium of a state authority. In effect, the college serviced and repaid the bonds, but at the lower cost resulting from the tax-free status of the interest payments. The Court upheld the program on reasoning analogous to that in Tilton. In applying the second of the Lemon 7’s three-part test, that concerning “primary effect,” the following refinement was added:
“Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” 413 U. S., at 743.
Although the college which Hunt concerned was subject to substantial control by its sponsoring Baptist Church, it was found to be similar to the colleges in Tilton and not “pervasively sectarian.” As in Tilton, state aid weht to secular facilities only, and thus not to any “specifically religious activity.” 413 U. S., at 743-745.
Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), followed in Lemon Vs wake much as Hunt followed in Tilton’s. The aid in Nyquist was to elementary and secondary schools which, the District Court found, generally conformed to a “profile” of a sectarian or substantially religious school. The state aid took three forms: direct subsidies for the maintenance and repair of buildings; reimbursement of parents for a percentage of tuition paid; and certain tax benefits for parents. All three forms of aid were found to have an impermissible primary effect. The maintenance and repair subsidies, being unrestricted, could be used for the upkeep of a chapel or classrooms used for religious instruction. The reimbursements and tax benefits to parents could likewise be used to support wholly religious activities.
In Levitt v. Committee for Public Education, 413 U. S. 472 (1973), the Court also invalidated a program for public aid to church-affiliated schools. The grants, which were to elementary and secondary schools in New York, were in the form of reimbursements for the schools’ testing and recordkeeping expenses. The schools met the same sectarian profile as did those in Nyquist, at least in some cases. There was therefore “substantial risk” that the state-funded tests would be “drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church.” 413 U. S., at 480.
Last Term, in Meek v. Pittenger, 421 U. S. 349 (1975), the Court ruled yet again on a state-aid program for church-related elementary and secondary schools. On the authority of Allen, it upheld a Pennsylvania program for lending textbooks to private school students. It found, however, that Lemon I required the invalidation of two other forms of aid to the private schools. The first was the loan of instructional materials and equipment. Like the textbooks, these were secular and nonideological in nature. Unlike the textbooks, however, they were loaned directly to the schools. The schools, similar to those in Lemon I, were ones in which “the teaching process is, to a large extent, devoted to the inculcation of religious values and belief.” 421 U. S., at 366. Aid flowing directly to such “religion-pervasive institutions,” ibid., had the primary effect of advancing religion. See Hunt v. McNair, supra. The other form of aid was the provision of “auxiliary” educational services: remedial instruction, counseling and testing, and speech and hearing therapy. These also were intended to be neutral and nonideological, and in fact were to be provided by public school teachers. Still, there was danger that the teachers, in such a sectarian setting, would allow religion to seep into their instruction. To attempt to prevent this from happening would excessively entangle the State in church affairs. The Court referred again to the danger of political divisiveness, heightened, as it had been in Lemon I and Nyquist, by the necessity of annual legislative reconsideration of the aid appropriation. 421 U. S., at 372.
So the slate we write on is anything but clean. Instead, there is little room for further refinement of the principles governing public aid to church-affiliated private schools. Our purpose is not to unsettle those principles, so recently reaffirmed, see Meek v. Pittenger, supra, or to expand upon them substantially, but merely to insure that they are faithfully applied in this case.
Ill
The first part of Lemon J’s three-part test is not in issue; appellants do not challenge the District Court’s finding that the purpose of Maryland’s aid program is the secular one of supporting private higher education generally, as an economic alternative to a wholly public system. The focus of the debate is on the second and third parts, those concerning the primary effect of advancing religion, and excessive church-state entanglement. We consider them in the same order.
A
While entanglement is essentially a procedural problem, the primary-effect question is the substantive one of what private educational activities, by whatever procedure, may be supported by state funds. Hunt requires (1) that no state aid at all go to institutions that are so “pervasively sectarian” that secular activities cannot be separated from sectarian ones, and (2) that if secular activities can be separated out, they alone may be funded.
(1) The District Court’s finding in this case was that the appellee colleges are not “pervasively sectarian.” 387 F. Supp., at 1293. This conclusion it supported with a number of subsidiary findings concerning the role of religion on these campuses:
(a) Despite their formal affiliation with the Roman Catholic Church, the colleges are “characterized by a high degree of institutional autonomy.” Id., at 1287 n. 7. None of the four receives funds from, or makes reports to, the Catholic Church. The Church is represented on their governing boards, but, as with Mount Saint Mary’s, “no instance of entry of Church considerations into college decisions was shown.” Id., at 1295.
(b) The colleges employ Roman Catholic chaplains and hold Roman Catholic religious exercises on campus. Attendance at such is not required; the encouragement of spiritual development is only “one secondary objective” of each college; and “at none of these institutions does this encouragement go beyond providing the opportunities or occasions for- religious experience.” Ibid. It was the District Court’s general finding that “religious indoctrination is not a substantial purpose or activity of any of these defendants.” Id., at 1296.
(c) Mandatory religion or theology courses are taught at each of the colleges, primarily by Roman Catholic clerics, but these only supplement a curriculum covering “the spectrum of a liberal arts program.” Nontheology courses are taught in an “atmosphere of intellectual freedom” and without “religious pressures.” Each college subscribes to, and abides by, the 1940 Statement of Principles on Academic Freedom of the American Association of University Professors. Id., at 1288, 1293, and n. 3, 1295.
(d) Some classes are begun with prayer. The percentage of classes in which this is done varies with the college, from a “minuscule” percentage at Loyola and Mount Saint Mary’s, to a majority at Saint Joseph. Id., at 1293. There is no “actual college policy” of encouraging the practice. “It is treated as a facet of the instructor’s academic freedom.” Ibid. Classroom prayers were therefore regarded by the District Court as “peripheral to the subject of religious permeation,” as were the facts that some instructors wear clerical garb and some classrooms have religious symbols. Ibid. The court concluded:
“None of these facts impairs the clear and convincing evidence that courses at each defendant are taught 'according to the academic requirements intrinsic to the subject matter and the individual teacher’s concept of professional standards.’ [citing Tilton v. Richardson, 403 U. S., at 681].” Id., at 1293-1294.
In support of this finding the court relied on the fact that a Maryland education department group had monitored the teacher education program at Saint Joseph College, where classroom prayer is most prevalent, and had seen “no evidence of religion entering into any elements of that program.” Id., at 1293.
(e) The District Court found that, apart from the theology departments, see n. 20, supra, faculty hiring decisions are not made on a religious basis. At two of the colleges, Notre Dame and Mount Saint Mary’s, no inquiry at all is made into an applicant’s religion. Religious preference is to be noted on Loyola’s application form, but the purpose is to allow full appreciation of the applicant’s background. Loyola also attempts to employ each year two members of a particular religious order which once staffed a college recently merged into Loyola. Budgetary considerations lead the colleges generally to favor members of religious orders, who often receive less than full salary. Still, the District Court found that “academic quality” was the principal hiring criterion, and that any “hiring bias,” or “effort by any defendant to stack its faculty with members of a particular religious group,” would have been noticed by other faculty members, who had never been heard to complain. Id., at 1294.
(f) The great majority of students at each of the colleges are Roman Catholic, but the District Court concluded from a “thorough analysis of the student admission and recruiting criteria” that the student bodies “are chosen without regard to religion.” Id., at 1295.
Wé cannot say that the foregoing findings as to the role of religion in particular aspects of the colleges are clearly erroneous. Appellants ask us to set those findings aside in certain respects. Not surprisingly, they have gleaned from this record of thousands of pages, compiled during several weeks of trial, occasional evidence of a more sectarian character than the District Court ascribes to the colleges. It is not our placo, however, to reappraise the evidence, unless it plainly fails to support the findings of the trier of facts. That is certainly not the case here, and it would make no difference even if we were to second-guess the District Court in certain particulars. To answer the question whether an institution is so “pervasively sectarian” that it may receive no direct state aid of any kind, it is necessary to paint a general picture of the institution, composed of many elements. The general picture that the District Court has painted of the appellee institutions is similar in almost all respects to that of the church-affiliated colleges considered in Tilton and Hunt. We find no constitutionally significant distinction between them, at least for purposes of the “pervasiye sectarianism” test.
(2) Having found that the appellee institutions are not "so permeated by religion that the secular side cannot be separated from the sectarian,” 387 F. Supp., at 1293, the District Court proceeded to the next question posed by Hunt: whether aid in fact was extended only to “the secular side.” This requirement the court regarded as satisfied by the statutory prohibition against sectarian use, and by the administrative enforcement of that prohibition through the Council for Higher Education. We agree. Hunt requires only that slate funds not be used to support "specifically religious activity.” It is clear that fund uses exist that meet this requirement. See Tilton v. Richardson, supra; Hunt v. McNair, supra. We have no occasion to elaborate further on what is and is not a “specifically religious activity/' for no particular use of the state funds is set out in this statute. Funds are put to the use of the college's choice, provided it is not a sectarian use, of which the college must satisfy the Council. If the question is whether the statute sought to be enjoined authorizes state funds for “specifically religious activity,” that question fairly answers itself. The statute in terms forbids the use of funds for “sectarian purposes,” and this prohibition appears to be at least as broad as Hunt’s prohibition of the public funding of “specifically religious activity.” We must assume that the colleges, and the Council, will exercise their delegated control over use of the funds in compliance with the statutory, and therefore the constitutional, mandate. It is to be expected that they will give a wide berth to “specifically religious activity,” and thus minimize constitutional questions. Should such questions arise, the courts will consider them. It has not been the Court’s practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds. See, e. g., Hunt v. McNair, 413 U. S., at 744; Tilton v. Richardson, 403 U. S., at 682 (plurality opinion).
B
If the foregoing answer to the “primary effect” question seems easy, it serves to make the “excessive entanglement” problem more difficult. The statute itself clearly denies the use of public funds for “sectarian purposes.” It seeks to avert such use, however, through a process of annual interchange — proposal and approval, expenditure and review — between the colleges and the Council. In answering the question whether this will be an “excessively entangling” relationship, we must consider the several relevant factors identified in prior decisions:
(1) First is the character of the aided institutions. This has been fully described above. As the District Court found, the colleges perform “essentially secular educational functions,” 387 F. Supp., at 1288, that are distinct and separable from religious activity. This finding, which is a prerequisite under the “pervasive sectarianism” test to any state aid at all, is also important for purposes of the entanglement test because it means that secular activities, for the most part, can be taken at face value. There is no danger, or at least only a substantially reduced danger, that an ostensibly secular activity — the study of biology, the learning of a foreign language, an athletic event — will actually be infused with religious content or significance. The need for close surveillance of purportedly secular activities is correspondingly reduced. Thus the District Court found that in this case “there is no necessity for state officials to investigate the conduct of particular classes of educational, programs to determine whether a school is attempting to indoctrinate its students under the guise of secular education.” Id., at 1289. We cannot say the District Court erred in this judgment or gave it undue significance. The Court took precisely the same view with respect to the aid extended to the very similar institutions in Tilton. 403 U. S., at 687 (plurality opinion), See also Hunt v. McNair, supra, at 746.
(2) As for the form of aid, we have already noted that no particular use of state funds is before us in this case. The process by which aid is disbursed, and a use for it chosen, is before us. We address this as a matter of the “resulting relationship” of secular and religious authority.
(3) As noted, the funding process is an annual one. The subsidies are paid out each year, and they can be put to annually varying uses. The colleges propose particular uses for the Council’s approval, and, following expenditure, they report to the Council on the use to which the funds have been put.
The District Court’s view was that in light of the character of the aided institutions, and the resulting absence of any need “to investigate the conduct of particular classes,” 387 F. Supp., at 1289, the annual nature of the subsidy was not fatal. In fact, an annual, ongoing relationship had existed in Tilton, where the Government retained the right to inspect subsidized buildings for sectarian use, and the ongoing church-state involvement had been even greater in Hunt, where the State was actually the lessor of the subsidized facilities, retaining extensive powers to regulate their use. See 387 F. Supp., at 1290.
We agree with the District Court that “excessive entanglement” does not necessarily result from the fact that the subsidy is an annual one. It is true that the Court favored the “one-time, single-purpose” construction grants in Tilton because they entailed “no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution’s expenditures,” 403 U. S., at 688 (plurality opinion). The present aid program cannot claim these aspects. But if the question is whether this case is more like Lemon I or more like Tilton — and surely that is the fundamental question before us — the answer must be that it is more like Tilton.
Tilton is distinguishable only by the form of aid. We cannot discount the distinction entirely, but neither can we regard it as decisive. As the District Court pointed out, ongoing, annual supervision of college facilities was explicitly foreseen in Tilton, 403 U. S., at 675; see also Lemon I, 403 U. S., at 669 (opinion of White, J.), and even more so in Hunt, 413 U. S., at 739-740, 745-749. Tilton and Hunt would be totally indistinguishable, at least in terms of annual supervision, if funds were used under the present statute to build or maintain physical facilities devoted to secular use. The present statute contemplates annual decisions by the Council as to what is a “sectarian purpose/’ but, as we have noted, the secular and sectarian activities of the colleges are easily separated. Occasional audits are possible here, but we must accept the District Court’s finding that they would be “quick and non-judgmental.” 387 P. Supp., at 1296. They and the other contacts between the Council and the colleges are not likely to be any more entangling than the inspections and audits incident to the normal process of the colleges’ accreditations by the State.
While the form-of-aid distinctions of Tilton are thus of questionable importance, the character-of-institution distinctions of Lemon I are most impressive., To reiterate a few of the relevant points: The elementary and secondary schooling in Lemon I came at an impressionable age; the aided schools were “under the general supervision” of the Roman Catholic diocese; each school had a local Catholic parish that assumed “ultimate financial responsibility” for it; the principals of the schools were usually appointed by
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
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27. Michigan
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30. Missouri
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35. New Jersey
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Answer:
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songer_geniss
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G
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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. 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".
CIMORELLI v. NEW YORK CENT. R. CO.
No. 9894.
Circuit Court of Appeals, Sixth Circuit.
April 9, 1945.
Marvin C. Harrison, of Cleveland, Ohio, and Joseph E. Pilmer, of Ashtabula, Ohio, for appellant.
C. M. Horn, of Cleveland, Ohio (C. M. Horn and McKeehan, Merrick, Arter & Stewart, all of Cleveland, Ohio, on the brief), for appellee.
Before ALLEN, HAMILTON, and McAllister, circuit judges.
HAMILTON, "Circuit Judge.
Appellee is a common carrier engaged in the transportation of freight in interstate commerce.
On May 15, 1942, pursuant to Section 22 of the Interstate Commerce Act, 49 U. S.C.A. § 22, the United States entered into a contract with appellee whereby the latter agreed to equip, maintain and operate in its yards at Dock Junction, Pennsylvania, a temporary storage place for war materiel in transit. The materiel was to be unloaded from cars, placed in open air storage and so kept that the contents of each car could be reloaded and moved to points of destination under the original waybill and bill of lading. Appellee was to be paid for its services sums in addition to the ordinary transportation charges and was also to be reimbursed for its cost in preparing, equipping and maintaining the storage yard.
Appellee contracted with the Duffy Construction Company for the unloading and reloading of the cars in a proper and orderly condition and at such places in appellee’s yard as were selected by its superintendent.
The Duffy Company was required to furnish its own equipment and labor and it was to perform the work promptly at such times and to such extent as was reasonably required by appellee’s superintendent. Any necessary dunnage was to be furnished and unloaded by appellee ‘at the site of the work, and appellee was to put the cars for unloading and reloading at such places in the yard as were reasonably convenient for the Duffy Company. Duffy Company was to receive for its services all of its cost of the work and in addition seven cents per ton, measured by the billed weight unloaded from car to ground or reloaded from ground to car. However, the plus amount in no event was to exceed ten percentum of the cost of performing the work. The allowable cost items were enumerated in the contract and no part of them was payable unless approved as to necessity and amount by appellee’s superintendent before being incurred. As a prerequisite to the payment of any of the cost, the Duffy Company was required to keep accurate accounts thereof and to submit copies of these accounts to appellee’s superintendent, or his representative at the site of the work and the Duffy Company was required to submit along with the cost account, a written statement of the daily tonnage handled. The purchase of all hand tools, materials and supplies was to be approved in advance by appellee’s superintendent and the title to such property vested in appellee, the Duffy Company being responsible to appellee for any loss or damage thereto, excluding ordinary wear and tear. The Duffy Company was required to obtain and carry insurance with insurers approved by appellee covering at the site of the work, workmen’s compensation, public liability, property damage, payroll robbery, holdup insurance, fidelity insurance, automobile insurance and contractor’s equipment machinery shifting insurance, the premiums for all of such policies being included in the cost of the work. The insurance was to protect all parties in interest.
There was a special provision in the contract that the Duffy Company was to perform the work as an independent contractor with exclusive supervision of the manner and method of its performance except that the work was to be satisfactory to appellee. The contract was terminable by either party upon thirty days’ written notice to the other party.
Appellant brought this action against appellee claiming it was liable to him under the Employers’ Liability Act, 45 U.S. C.A. §§ 51-60. He stated in his petition that while employed by appellee on July 27, 1942, and due to its negligence, he was severely injured while unloading freight from a box car stationed on appellee’s out-door storage track at Powell Avenue, Dock Junction, Erie, Pennsylvania. Appellee answered and denied that appellant was employed by it at the time of his injuries.
In the course of a pre-trial hearing, under the Federal Rules of Civil Procedure, Rule 16, 28 U.S.C.A. following Section 723c, appellee submitted to the trial court the contract it had with the United States and also the contract it had with the Duffy Construction Company and insisted that these documents showed that the Duffy Construction Company was an independent contractor. Appellant admitted that at the time of his injuries he was employed by the Duffy Construction Company. The parties, by stipulation, submitted to the court, as a matter of law, the issue as to whether unde-r the contracts appellant was an employee of appellee at the time of the accident of which he complains, and the court decided that he was not and also decided that the contract between appellee and the Duffy Construction Company was not entered into for the purpose or with the intent of enabling appellee to exempt itself from any liability created by the Federal Employers’ Liability Act and that the contract was not a violation of Section 5 of the Act. Appellant’s petition was dismissed, hence ibis appeal.
At the time of the injuries of which appellant complains, he was not an employee of appellee within the meaning of the Federal Employers’ Liability Act if the Duffy Construction Company was an independent contractor. The Act in question does not itself define the meaning of the word “employee-’ or the word “employed.” The portion of such Act, 45 U.S.C.A. § 51, pertinent to the question under consideration is as follows:
“Every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier.”
The words used in this section are to be construed in the natural sense and describe the conventional relationship of employer and employee. Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670. And .so the first question here is whether appellee, for whom the work was being done, had given up its proprietorship of the particular business to the Duffy Construction Company and had thus divested itself of the right of control, to the extent that it had no longer a legal right to terminate the work or to direct it. If appellee had done nothing to limit its rights with regard to the business which was being done for its benefit, but had retained its proprietorship of it, each person working for the Duffy Construction Company was legally subject to appellee’s control while so engaged and was the employee of appellee. Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440; The Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480.
We are here dealing with a legal problem so difficult that law writers were unclear and perplexed about it long before we came on the scene and no doubt they will so continue after we have gone, but there are extant certain intelligible, if imperfect, legal rules by which there may be an ascertainment of when a person is the employee of another, although his contract of employment is not directly made with such person. Each case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative. One of the tests is who has the right of control over the work being done. Other recognized tests are the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price, the independent nature of the contractor’s business, his employment of assistants with the right to supervise their activities, his obligation to- furnish necessary tools, supplies and materials, his right to control the progress of the work except as to final results, the time for which the wox-kmen are employed, the method of payment, whether by time or job, and whether the work is pax~t of the regular business of the employer. The important test is the control over the details of the work reserved by the employer and to what extent the person doing the work is in fact independent in its performance. Restatement of the Law of Agency, Vol. 1, p. 483, ch. 7, See. 220.
Having regard to the foregoing considerations, in simple terms it may be said that an independent contractor is a person employed to perform specific work on condition that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed.
In the case at bar under the primary contract, the shipments were to be consigned in cars to the Freight Agent of appellee at Dock Junction, Erie, Pennsylvania, and the identity of lading of each inbound car was to be preserved while stored and each order for reforwarding of a carload outbound from storage was to give reference to the inbound car, the lading of which the order covered and there was to be no substitution of tonnage. Under the subcontract, the only part of the work delegated to the Duffy Construction Company was to unload and reload the freight. Appellee’s superintendent selected the place in the yards where, and fixed the time when, the cars were to be either unloaded or reloaded. He also determined how much equipment had to be furnished by the Duffy Company and the number of persons to be employed in the work.
The part of the work to be done by Duffy was in the railroad yards of appellee where there was presumably a frequent movement of cars and appellee controlled the place where the work was to be performed. No part of the premises was surrendered to Duffy. The whole project involved many interdependent details, the control of any one of which could not be surrendered without disorganization of the whole. From the very nature of the work its performance could not be committed exclusively to the discretion of the Duffy Company. The independence of the contract here in question is further negatived by the provisions that appellee’s superintendent had to approve in advance every item of cost and necessity of purchase of equipment and also had to approve in advance the salaries and wages to be paid employees. It may be said that these provisions of the contract were necessitated because Duffy Company was to be paid on a cost plus basis, but even so, the provisions gave the contractee such control over the work that the contractor could- have no choice as to the manner in which the work was to be done. The fact of actual interference or exercise of control by the employer is not material. If the existence of the right or authority to interfere or control appears, the contractor cannot be independent. Atlantic Transport Co. v. Coney’s, 2 Cir., 82 F. 177; Reynolds v. Braithwaite, 131 Pa. 416, 18 A. 1110.
The employment of Duffy Company was general; many or few cars were to be unloaded or reloaded according to the demands of the business. The work was to be done when, where and in the proportions as the needs of appellee might justify. It is therefore manifest that through appellee’s superintendent, full control over the means and manner of performance of the contract was reserved to appellee and that there was left in the contractor no independence. Kelly v. Delaware, L. & W. R. Co., 270 Pa. 426, 113 A. 419; Western Express Co. v. Smeltzer, 6 Cir., 88 F.2d 94, 112 A.L.R. 74.
We do not think the provision of the agreement that the Duffy Company was to perform the work as an independent contractor with exclusive supervision of the method and manner of performance is conclusive. “Neither the form of expression on the one hand, nor the name on the .other, is conclusive. We must see what rights and privileges were in fact granted, what burdens and obligations assumed.” Chicago, R. I. & P. Ry. Co. v. Union Pac. Ry. Co., C.C., 47 F. 15, 22. The spirit and purpose of an agreement, as well as its letter, must be considered in the interpretation and application of a contract. What a contract is styled by the parties does not determine its character or their legal relationship. Union Pacific Ry. Co. v. Chicago &c R. Co., 163 U.S. 564, 582, 16 S.Ct. 1173, 41 L.Ed. 265.
Taking into consideration the circumstances surrounding the parties, the subject matter of the contract and the object intended to be accomplished by its performance, and viewing the special provision in the light of- its context, we do not believe that it was the purpose of the parties that the work in hand should be performed by the Duffy Construction Company as an independent contractor.
Preliminary to the signing of the primary contract between appellee and the United States, it was represented that the temporary storage yard at Dock Junction was to have a capacity of 1250 carloads, and that appellee was to furnish necessary fire protection facilities, water supply, flood lights, telephones, guard protection and otlier apparatus to protect the premises and property in storage against damage or loss and appellee was to move the cars into and out of the yards for unloading and reloading. It would seem from a consideration of all of the elements of the work that appellee could not have discharged its obligations under the primary contract if it had delegated to the Duffy Construction Company the exclusive right to unload or reload the cars without supervision from appellee, as to when, where and how the work was to be done.
The case at bar can scarcely be distinguished from the case of New Orleans M. & C. R. Co. v. Hanning, 15 Wall. 649, 82 U.S. 649, 657, 21 L.Ed. 220. There the railroad company contracted with one Carvin to rebuild a wharf in use by the company. Carvin was to furnish the materials and labor necessary to build the wharf with mooring posts cluster-piles for fenders every twenty feet, rows of piles on boundary lines above and below, slips or inclines, as the company, through its engineer might require and to complete the whole in a month. Carvin was to submit to the supervision and direction of the engineer and to do the work to his satisfaction.
During the progress of the work, appellee Hanning, while walking across the wharf, was precipitated down an embankment and received serious injuries which he claimed were wholly caused by the contractor's negligence but he sued the contractee. The court, in applying the rule that the principal is liable for the acts of negligence of the agent in the course of his employment, although he did not authorize or know of the acts of which complaint was made, held the contractee liable. The court said:
“Nice shades of distinction exist, and many of the cases are hard to be reconciled. Here the general management and control of the work was reserved to the company. Its extent in many particulars \.as not prescribed. How and in what manner the wharf was to be built was not pointed out. * * * That, rebuilt, was to be as good as new. The new was to be of the best workmanship. This is quite indefinite and authorizes not only, but requires a great amount of care and direction on the part of the company. * * * The company reserve the power not only to direct what shall be done, bur how it shall be done. This is an important test of liability.”
In the case of Chicago, Rock Island & Pacific R. Co. v. Bond, Admr. of Turner, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735, the deceased contracted with the railroad company to shovel coal on a per-ton basis assuming all risk and liability for injury to, or death of, himself or any person employed by him while doing the work. Under the contract the deceased was to remove all coal from cars into coal chutes at Enid, Oklahoma, owned by the company, in such amount and at such times as required by the company. He was also to break the coal to appropriate sizes and to gather up coal that fell from the chute pockets to the ground and place the same on cars or engines as desired by the company. The railroad company was to furnish the necessary tools for the performance of the stipulated services and was to keep a record of all coal delivered and Turner was to be paid upon the basis of the coal handled as determined by daily reports of cars unloaded by him. With his report he was required to furnish a certification from each engine man, hostler or other employee showing the number of tons of coal delivered to any engine. Turner was struck by a train of The Rock Island Railway Company while on his way to or from his place of work and killed. The court decided that under the terms of the contract, the railroad company did not retain the right to direct the manner in which the work should be done as well as the results to be accomplished and that Turner was an independent contractor and that the railroad company was not liable for his death under the Employers' Liability Act.
Appellee urges on us that the cited case is decisive of the case at bar. We do not so view it. There were some provisions of the Turner contract similar to the contract here under consideration but Turner was doing all of the work at the chute with the railroad company placing the cars there to be unloaded and there was no immediate supervision of the details by which he was to do the work and he was not paid on a cost plus basis.
When the primary contract and the subcontract are construed together in the case at bar, the conclusion is inescapable that the Duffy Company would have had to conform the manner of rendering its services to the necessities of appellee in performing its duties under the primary contract with the United States; otherwise, at times appellee would have had to discontinue the movement of freight into and out of the yards. Such a construction of the contract would be contrary to the intention of the parties. In the Bond case, Turner unloaded the coal at the tipple, a fixed place, where he could perform his services without hindering or interfering with the movement of the railroad company’s cars. The cited case is distinguishable from the one at bar on its facts. It may require a nice shade of distinction but such distinction does exist.
In view of the conclusion here reached we find it unnecessary to decide whether the contract of appellee with the Duffy Construction Company was void because of the prohibition of the Employers’ Liability Act, 45 U.S.C.A. § 55.
Judgment reversed and cause remanded with directions to set aside the order dismissing appellant’s petition and for further proceedings consistent with this opinion.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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sc_casedisposition
|
D
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
TEXAS v. BROWN
No. 81-419.
Argued January 12, 1983
Decided April 19, 1983
Justice Rehnquist, joined by The Chief Justice, Justice White, and Justice O’ConnoR, concluded that the police officer did not violate the Fourth Amendment in seizing the green balloon from respondent’s automobile. The plain-view doctrine provides grounds for a warrantless seizure of a suspicious item when the officer’s access to the item has some prior justification under the Fourth Amendment. This rule merely reflects an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property. Here, the officer’s initial stop of respondent’s vehicle was valid, and his actions in shining his flashlight into the car and changing his position to see what was inside did not violate any Fourth Amendment rights. The “immediately apparent” language in Coolidge, supra, does not establish a requirement that a police officer “know” that certain items are contraband or evidence of a crime. “The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” Payton v. New York, 445 U. S. 573, 587. Probable cause is a flexible, common-sense standard, merely requiring that the facts available to the officer would warrant a man of reasonable caution to believe that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. In view of the police officer’s testimony here, corroborated by that of the police department chemist, as to the common use of balloons in packaging narcotics, the officer had probable cause to believe that the balloon contained an illicit substance. Moreover, the requirement of the plain-view doctrine under Coolidge, supra, that the officer must discover incriminating evidence “inadvertently,” without knowing in advance the location of the particular evidence and intending to seize it by use of the doctrine as a pretext, was no bar to the seizure here. Pp. 735-744.
Justice Powell, joined by Justice Blackmun, concurring in the judgment, concluded that the articulation in Coolidge, supra, of the plain-view exception to the Warrant Clause requirements of the Fourth Amendment is dispositive of the issue here. Respondent conceded that the officer’s initial intrusion was lawful and that the discovery of the tied-off balloon was inadvertent in that it was observed in the course of a lawful inspection of the front seat area of the automobile. If probable cause must be shown to justify the seizure, it existed here, in light of the evidence that tied-off balloons are common containers for carrying illegal narcotics. Moreover, a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. Pp. 744-746.
Justice Stevens, joined by Justice Brennan and Justice Marshall, concurring in the judgment, concluded that under the “plain view” exception to the Fourth Amendment’s warrant requirement the officer’s warrantless temporary seizure of the balloon was proper, but that before the balloon’s contents could be used as evidence, the State had to justify opening it without a warrant, a question that remains open to the state court on remand. Pp. 747-751.
Rehnquist, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C. J., and White and O’Connor, JJ., joined. White, J., filed a concurring opinion, post, p. 744. Powell, J., filed an opinion concurring in the judgment, in which Blackmun, J., joined, post, p. 744. Stevens, J., filed an opinion concurring in the judgment, in which Brennan and Marshall, JJ., joined, post, p. 747.
C. Chris Marshall argued the cause for petitioner. With him on the briefs were Tim Curry, L. T. Wilson, and Stephen R. Chaney.
Allan K. Butcher argued the cause for respondent. With him on the brief was J. Don Carter.
Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Joshua I. Schwartz filed a brief for the United States as amicus curiae urging reversal.
Justice Rehnquist
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice O’Connor joined.
Respondent Clifford James Brown was convicted in the District Court of Tarrant County, Tex., for possession of heroin in violation of state law. The Texas Court of Criminal Appeals reversed his conviction, holding that certain evidence should have been suppressed because it was obtained in violation of the Fourth Amendment to the United States Constitution. 617 S. W. 2d 196. That court rejected the State’s contention that the so-called “plain view” doctrine justified the police seizure. Because of apparent uncertainty concerning the scope and applicability of this doctrine, we granted certiorari, 457 U. S. 1116, and now reverse the judgment of the Court of Criminal Appeals.
On a summer evening in June 1979, Tom Maples, an officer of the Fort Worth police force, assisted in setting up a routine driver’s license checkpoint on East Allen Street in that city. Shortly before midnight Maples stopped an automobile driven by respondent Brown, who was alone. Standing alongside the driver’s window of Brown’s car, Maples asked him for his driver’s license. At roughly the same time, Maples shined his flashlight into the car and saw Brown withdraw his right hand from his right pants pocket. Caught between the two middle fingers of the hand was an opaque, green party balloon, knotted about one-half inch from the tip. Brown let the balloon fall to the seat beside his leg, and then reached across the passenger seat and opened the glove compartment.
Because of his previous experience in arrests for drug offenses, Maples testified that he was aware that narcotics frequently were packaged in balloons like the one in Brown’s hand. When he saw the balloon, Maples shifted his position in order to obtain a better view of the interior of the glove compartment. He noticed that it contained several small plastic vials, quantities of loose white powder, and an open bag of party balloons. After rummaging briefly through the glove compartment, Brown told Maples that he had no driver’s license in his possession. Maples then instructed him to get out of the car and stand at its rear. Brown complied, and, before following him to the rear of the car, Maples reached into the car and picked up the green balloon; there seemed to be a sort of powdery substance within the tied-off portion of the balloon.
Maples then displayed the balloon to a fellow officer who indicated that he “understood the situation.” The two officers then advised Brown that he was under arrest. They also conducted an on-the-scene inventory of Brown’s car, discovering several plastic bags containing a green leafy substance and a large bottle of milk sugar. These items, like the balloon, were seized by the officers. At the suppression hearing conducted by the District Court, a police department chemist testified that he had examined the substance in the balloon seized by Maples and determined that it was heroin. He also testified that narcotics frequently were packaged in ordinary party balloons.
The Court of Criminal Appeals, discussing the Fourth Amendment issue, observed that “ ‘plain view alone is never enough to justify the warrantless seizure of evidence.’ ” 617 S. W. 2d, at 200, quoting Coolidge v. New Hampshire, 403 U. S. 443, 468 (1971) (opinion of Stewart, J., joined by Douglas, Brennan, and Marshall, JJ.) It further concluded that “Officer Maples had to know that ‘incriminatory evidence was before him when he seized the balloon.’” 617 S. W. 2d, at 200 (emphasis supplied), quoting DeLao v. State, 550 S. W. 2d 289, 291 (Tex. Crim. App. 1977). On the State’s petition for rehearing, three judges dissented, stating their view that “[t]he issue turns on whether an officer, relying on years of practical experience and knowledge commonly accepted, has probable cause to seize the balloon in plain view.” 617 S. W. 2d, at 201.
Because the “plain view” doctrine generally is invoked in conjunction with other Fourth Amendment principles, such as those relating to warrants, probable cause, and search incident to arrest, we rehearse briefly these better understood principles of Fourth Amendment law. That Amendment secures the persons, houses, papers, and effects of the people against unreasonable searches and seizures, and requires the existence of probable cause before a warrant shall issue. Our cases hold that procedure by way of a warrant is preferred, although in a wide range of diverse situations we have recognized flexible, common-sense exceptions to this requirement. See, e. g., Warden v. Hayden, 387 U. S. 294 (1967) (hot pursuit); United States v. Jeffers, 342 U. S. 48, 51-52 (1951) (exigent circumstances); United States v. Ross, 456 U. S. 798 (1982) (automobile search); Chimel v. California, 395 U. S. 752 (1969), United States v. Robinson, 414 U. S. 218 (1973), and New York v. Belton, 453 U. S. 454 (1981) (search of person and surrounding area incident to arrest); Almeida-Sanchez v. United States, 413 U. S. 266 (1973) (search at border or “functional equivalent”); Zap v. United States, 328 U. S. 624, 630 (1946) (consent). We have also held to be permissible intrusions less severe than full-scale searches or seizures without the necessity of a warrant. See, e. g., Terry v. Ohio, 392 U. S. 1 (1968) (stop and frisk); United States v. Brignoni-Ponce, 422 U. S. 873 (1975) (seizure for questioning); Delaware v. Prouse, 440 U. S. 648 (1979) (roadblock). One frequently mentioned “exception to the warrant requirement,” Coolidge v. New Hampshire, supra, at 456, is the so-called “plain view” doctrine, relied upon by the State in this case.
While conceding that the green balloon seized by Officer Maples was clearly visible to him, the Court of Criminal Appeals held that the State might not avail itself of the “plain view” doctrine. That court said:
“For the plain view doctrine to apply, not only must the officer be legitimately in a position to view the object, but it must be immediately apparent to the police that they have evidence before them. This ‘immediately apparent’ aspect is central to the plain view exception and is here relied upon by appellant. [Citation omitted.] In this case then, Officer Maples had to know that ‘incriminatory evidence was before him when he seized the balloon.’” 617 S. W. 2d, at 200.
The Court of Criminal Appeals based its conclusion primarily on the plurality portion of the opinion of this Court in Coolidge v. New Hampshire, supra. In the Coolidge plurality’s view, the “plain view” doctrine permits the warrantless seizure by police of private possessions where three requirements are satisfied. First, the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position from which he can view a particular area. Id., at 465-468. Second, the officer must discover incriminating evidence “inadvertently,” which is to say, he may not “know in advance the location of [certain] evidence and intend to seize it,” relying on the plain-view doctrine only as a pretext. Id., at 470. Finally, it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id., at 466. While the lower courts generally have applied the Coolidge plurality’s discussion of “plain view,” it has never been expressly adopted by a majority of this Court. On the contrary, the plurality’s formulation was sharply criticized at the time, see, Coolidge v. New Hampshire, 403 U. S., at 506 (Black, J., dissenting); id., at 516-521 (White, J., dissenting). While not a binding precedent, as the considered opinion of four Members of this Court it should obviously be the point of reference for further discussion of the issue.
The Coolidge plurality observed: “it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure,” simply as “the normal concomitant of any search, legal or illegal.” Id., at 465. The question whether property in plain view of the police may be seized therefore must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question. The Coolidge plurality, while following this approach to “plain view,” characterized it as an independent exception to the warrant requirement. At least from an analytical perspective, this description may be somewhat inaccurate. We recognized in Payton v. New, York, 445 U. S. 573, 587 (1980), the well-settled rule that “objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” A different situation is presented, however, when the property in open view is “‘situated on private premises to which access is not otherwise available for the seizing officer.’” Ibid., quoting G. M. Leasing Corp. v. United States, 429 U. S. 338, 354 (1977). As these cases indicate, “plain view” provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment. “Plain view” is perhaps better understood, therefore, not as an independent “exception” to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer’s “access to an object” may be.
The principle is grounded on the recognition that when a police officer has observed an object in “plain view,” the owner’s remaining interests in the object are merely those of possession and ownership, see Coolidge v. New Hampshire, supra, at 515 (White, J., dissenting). Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a “needless inconvenience,” 403 U. S., at 468, that might involve danger to the police and public. Ibid. We have said previously that “the permissibility of a particular law enforcement practice is judged by balancing its intrusion on . . . Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U. S., at 654. In light of the private and governmental interests just outlined, our decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. See Marron v. United States, 275 U. S. 192 (1927); Go-Bart Importing Co. v. United States, 282 U. S. 344, 358 (1931); United States v. Lefkowitz, 285 U. S. 452, 465 (1932); Harris v. United States, 390 U. S. 234, 236 (1968); Frazier v. Cupp, 394 U. S. 731 (1969). This rule merely reflects an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property.
Applying these principles, we conclude that Officer Maples properly seized the green balloon from Brown’s automobile. The Court of Criminal Appeals stated that it did not “question . . . the validity of the officer’s initial stop of appellant’s vehicle as a part of a license check,” 617 S. W. 2d, at 200, and we agree. Delaware v. Prouse, supra, at 654-655. It is likewise beyond dispute that Maples’ action in shining his flashlight to illuminate the interior of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee, 274 U. S. 559, 563 (1927): “[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.
Likewise, the fact that Maples “changed [his] position” and “bent down at an angle so [he] could see what was inside” Brown’s car, App. 16, is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown’s automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy, Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U. S. 735, 739-745 (1979), shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown’s car and of his open glove compartment was not a search within the meaning of the Fourth Amendment.
Thus there can be no dispute here as to the presence of the first of the three requirements held necessary by the Coolidge plurality to invoke the “plain view” doctrine. But the Court of Criminal Appeals, as we have noted, felt the State’s case ran aground on the requirement that the incriminating nature of the items be “immediately apparent” to the police officer. To the Court of Criminal Appeals, this apparently meant that the officer must be possessed of near certainty as to the seizable nature of the items. Decisions by this Court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the “plain view” doctrine.
In Colorado v. Bannister, 449 U. S. 1, 3-4 (1980), we applied what was in substance the plain-view doctrine to an officer’s seizure of evidence from an automobile. Id., at 4, n. 4. The officer noticed that the occupants of the automobile matched a description of persons suspected of a theft and that auto parts in the open glove compartment of the car similarly resembled ones reported stolen. The Court held that these facts supplied the officer with “probable cause,” id., at 4, and therefore, that he could seize the incriminating items from the car without a warrant. Plainly, the Court did not view the “immediately apparent” language of Coolidge as establishing any requirement that a police officer “know” that certain items are contraband or evidence of a crime. Indeed, Colorado v. Bannister, supra, was merely an application of the rule, set forth in Payton v. New York, 445 U. S. 573 (1980), that “[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” Id., at 587 (emphasis added). We think this statement of the rule from Payton, supra, requiring probable cause for seizure in the ordinary case, is consistent with the Fourth Amendment and we reaffirm it here.
As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U. S. 182, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949). Moreover, our observation in United States v. Cortez, 449 U. S. 411, 418 (1981), regarding “particularized suspicion,” is equally applicable to the probable-cause requirement:
“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”
With these considerations in mind it is plain that Officer Maples possessed probable cause to believe that the balloon in Brown’s hand contained an illicit substance. Maples testified that he was aware, both from his participation in previous narcotics arrests and from discussions with other officers,
that balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics. This testimony was corroborated by that of a police department chemist who noted that it was “common” for balloons to be used in packaging narcotics. In addition, Maples was able to observe the contents of the glove compartment of Brown’s car, which revealed further suggestions that Brown was engaged in activities that might involve possession of illicit substances. The fact that Maples could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer.
In addition to its statement that for seizure of objects in plain view to be justified the basis upon which they might be seized had to be “immediately apparent,” and the requirement that the initial intrusion be lawful, both of which requirements we hold were satisfied here, the Coolidge plurality also stated that the police must discover incriminating evidence “inadvertently,” which is to say, they may not “know in advance the location of [certain] evidence and intend to seize it,” relying on the plain-view doctrine only as a pretense. 430 U. S., at 470. Whatever may be the final disposition of the “inadvertence” element of “plain view,” it clearly was no bar to the seizure here. The circumstances of this meeting between Maples and Brown give no suggestion that the roadblock was a pretext whereby evidence of narcotics violation might be uncovered in “plain view” in the course of a check for driver’s licenses. Here, although the officers no doubt had an expectation that some of the cars they halted on East Allen Street — which was part of a “medium” area of narcotics traffic, App. 33 — would contain narcotics or paraphernalia, there is no indication in the record that they had anything beyond this generalized expectation. Likewise, there is no indication that Maples had any reason to believe that any particular object would be in Brown’s glove compartment or elsewhere in his automobile. The “inadvertence” requirement of “plain view,” properly understood, was no bar to the seizure here.
Maples lawfully viewed the green balloon in the interior of Brown’s car, and had probable cause to believe that it was subject to seizure under the Fourth Amendment. The judgment of the Texas Court of Criminal Appeals is accordingly reversed, and the case is remanded for further proceedings.
It is so ordered.
Brown argues that the decision below rested on an independent and adequate state ground, and therefore that this Court lacks jurisdiction. Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935). The position is untenable. The opinion of the Texas Court of Criminal Appeals rests squarely on the interpretation of the Fourth Amendment to the United States Constitution in Coolidge v. New Hampshire, 403 U. S. 443 (1971), and on Texas cases interpreting that decision, e. g., Howard v. State, 599 S. W. 2d 597 (Tex. Crim. App. 1979); DeLao v. State, 550 S. W. 2d 289 (Tex. Crim. App. 1977); Duncan v. State, 549 S. W. 2d 730 (Tex. Crim. App. 1977); and Nicholas v. State, 502 S. W. 2d 169 (Tex. Crim. App. 1973). The only mention of the Texas Constitution occurs in a summary of Brown’s contentions at the outset of the lower court’s opinion.
Brown relies principally on Howard v. State, supra, and Duncan v. State, supra. Neither decision supports the proposition that the Texas Court of Criminal Appeals based its decision upon state law. In Howard, the State argued that the plain-view doctrine justified the seizure of a closed translucent medicine jar from an automobile. The Court of Criminal Appeals rejected the claim, relying on Coolidge v. New Hampshire, supra, and stating that the State’s arguments “cannot be squared with the Supreme Court’s interpretation of the plain view doctrine.” 599 S. W. 2d, at 602. The court also relied on Thomas v. State, 572 S. W. 2d 507 (Tex. Crim. App. 1976), which it characterized as “[fjollowing the teachings of Coolidge v. New Hampshire.” 599 S. W. 2d, at 602. An additional opinion of the court on the State’s motion for rehearing merely elaborated upon the application of the plain-view doctrine set forth in the court’s original opinion. Similarly, in Duncan, the Court of Criminal Appeals rejected the State’s reliance on the plain-view theory, citing to Coolidge for a statement of the applicable law, as well as to Nicholas v. State, supra. Like the court’s other decisions in the area, Nicholas relied only on Coolidge.
It is not clear on the record before us when Brown was arrested. The Court of Criminal Appeals stated, at one point in its opinion, that it did not question “the propriety of the arrest since appellant failed to produce a driver’s license.” ■ 617 S. W. 2d 196,200. This statement might be read to suggest that Brown was arrested upon his failure to produce a license, instead of at some point following seizure of the balloon from the car. The transcript of the suppression hearing, however, indicates rather clearly that Brown was not formally arrested until after seizure of the balloon. App. 28-31. In the face of such indications, we decline to interpret the above-quoted clause from the Court of Criminal Appeals’ opinion as evidencing a belief that an arrest occurred prior to seizure of the balloon. Rather, we think it likely that the court was simply reasoning that Brown’s arrest, whenever it may have taken place, was justified because of his failure to produce a driver’s license.
We do not address the argument that seizure of the balloon would have been justified under New York v. Belton, 453 U. S. 454 (1981), which permits warrantless searches of the passenger compartment of an automobile incident to an arrest, because of the absence of clear factual findings regarding the time at which, and the reason for which, Brown was arrested and because the lower court was not able to consider that decision.
The plurality also remarked that “plain view alone is never enough to justify the warrantless seizure of evidence.” 403 U. S., at 468. The court below appeared to understand this phrase to impose an independent limitation upon the scope of the plain-view doctrine articulated in Coolidge. The context in which the plurality used the phrase, however, indicates that it was merely a rephrasing of its conclusion, discussed below, that in order for the plain-view doctrine to apply, a police officer must be engaged in a lawful intrusion or must otherwise legitimately occupy the position affording him a “plain view.”
Thus, police may perceive an object while executing a search warrant, or they may come across an item while acting pursuant to some exception to the Warrant Clause, e. g., Warden v. Hayden, 387 U. S. 294 (1967); Terry v. Ohio, 392 U. S. 1 (1968). Alternatively, police may need no justification under the Fourth Amendment for their access to an item, such as when property is left in a public place, see Payton v. New York, 445 U. S. 573, 587 (1980).
It is important to distinguish “plain view,” as used in Coolidge to justify seizure of an object, from an officer’s mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search, see infra, at 740; Katz v. United States, 389 U. S. 347 (1967), the former generally does implicate the Amendment’s limitations upon seizures of personal property. The information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity. In turn, these levels of suspicion may, in some cases, see, e. g., Terry v. Ohio, supra; United States v. Ross, 456 U. S. 798 (1982), justify police conduct affording them access to a particular item.
E. g., United States v. Chesher, 678 F. 2d 1353, 1356-1357, n. 2 (CA9 1982); United States v. Ocampo, 650 F. 2d 421, 427 (CA2 1981); United States v. Pugh, 566 F. 2d 626, 627, n. 2 (CA8 1977), cert. denied, 435 U. S. 1010 (1978); United States v. Coplen, 541 F. 2d 211 (CA9 1976), cert. denied, 429 U. S. 1073 (1977); United States v. Lara, 517 F. 2d 209 (CA5 1975); United States v. Johnson, 506 F. 2d 674 (CA8 1974), cert. denied, 421 U. S. 917 (1975); United States v. Booker, 461 F. 2d 990, 992 (CA6 1972); United States v. Hanahan, 442 F. 2d 649 (CA7 1971); People v. Waits, 196 Colo. 35, 580 P. 2d 391 (1978); Redd v. State, 240 Ga. 753, 243 S. E. 2d 16 (1978); State v. Chattley, 390 A. 2d 472 (Me. 1978); State v. Vohnoutka, 292 N. W. 2d 756 (Minn. 1980); Dick v. State, 596 P. 2d 1265 (Okla. Crim. App. 1979); State v. Miller, 45 Ore. App. 407, 608 P. 2d 595 (1980); Albo v. State, 379 So. 2d 648 (Fla. 1980).
While seizure of the balloon required a warrantless, physical intrusion into Brown’s automobile, this was proper, assuming that the remaining requirements of the plain-view doctrine were satisfied. United States v. Ross, 456 U. S. 798 (1982).
We need not address whether, in some circumstances, a degree of suspicion lower than probable cause would be sufficient basis for a seizure in certain cases.
See State v. King, 191 N. W. 2d 650, 655 (Iowa 1971); United States v. Santana, 485 F. 2d 365, 369-370 (CA2 1973), cert. denied, 415 U. S. 931 (1974); United States v. Bradshaw, 490 F. 2d 1097, 1101, n. 3 (CA4), cert. denied, 419 U. S. 895 (1974); North v. Superior Court, 8 Cal. 3d 301, 306-307, 502 P. 2d 1305, 1308 (1972).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_fedlaw
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Stanley SHEFTIC, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee. John Howard RUNYON, Jr., Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
Nos. 10493, 10515.
United States Court of Appeals Fourth Circuit.
Argued June 23, 1966.
Decided May 4, 1967.
John D. Phillips, Jr., and Arthur M. Recht, Wheeling, W. Va. (Court-assigned counsel), for appellants.
George H. Mitchell, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellee.
Before BOREMAN and BRYAN, Circuit Judges, and LEWIS, District Judge.
BOREMAN, Circuit Judge:
These are appeals from orders of the United States District Court for the Northern District of West Virginia denying habeas corpus relief to prisoners in custody of the State of West Virginia. Since the same legal issue is present in both cases we consider them together.
Petitioner, Runyon, was indicted on July 3, 1961, in the Circuit Court of Wayne County, West Virginia, for breaking and entering. Counsel was appointed to represent him at trial. He first pleaded not guilty but subsequently changed his plea to guilty and was sentenced to confinement in the state penitentiary at Moundsville, Marshall County, West Virginia, for a term of one to ten years. On October 2, 1965, he filed a petition for a writ of habeas corpus in the Supreme Court of Appeals of West Virginia, charging that he had been denied the effective assistance of counsel. This petition was denied without a hearing on October 18,1965. Thereafter, on December 14, 1965, Runyon filed a petition for a writ of habeas corpus in the United States District Court which petition was denied by order dated January 12, 1966, and the case was dismissed for failure to exhaust state remedies.
Petitioner, Sheftic, was indicted in April 1941 in Hancock County, West Virginia, on two charges of breaking and entering. He pleaded guilty and was sentenced to confinement in the state penitentiary. On November 4, 1943, the warden of the prison instituted proceedings under the West Virginia Habitual Criminal Statute, charging that Sheftic had four previous felony convictions. After a jury trial in which the sole issue was as to his identity Sheftic was sentenced to life imprisonment. Sheftic has filed various petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. On November 23, 1964, his latest petition filed in that court was denied without a hearing. In essence, his petition charged that the West Virginia statute authorizing the warden to institute recidivist proceedings was void and that the original guilty plea had been coerced. Subsequently Sheftic filed his petition in the court below for a writ of habeas corpus. This petition was denied also on the ground that Sheftic had failed to exhaust his state remedies.
THE DECISION IN MILLER v. BOLES
The district court based its denial of these petitions on its earlier decision in Miller v. Boles, 248 F.Supp. 49 (N.D.W.Va.1965). That decision sought to clarify the guidelines which should govern federal district courts in determining whether to entertain a state prisoner’s petition for habeas corpus relief. The court there pointed out that the recent Supreme Court decisions in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), have extricated the federal habeas corpus remedy from the “procedural pitfalls which often foreclosed relief without a decision on the merits.” 248 F.Supp. at 51. The court recognized the teaching of Townsend v. Sain, supra, which directs federal district courts to hold evidentiary hearings whenever the facts are in dispute and where the “habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” 372 U.S. 293 at 312-313, 83 S. Ct. 745, quoted with approval 248 F.Supp. at 53, n. 15.
However, the court in Miller concluded that the results reached in Fay v. Noia and Townsend v. Sain were chaotic for federal district judges and that these decisions had engendered criticism of federal encroachment upon “the prerogatives of State criminal justice,” 248 F.Supp. 53. It stated its opinion that the solution to the problems created by the expansion of the remedy of federal habeas corpus was the federal policy of exhaustion of remedies embodied in 28 U.S.C. § 2254 as amended. Pub.L.No. 89-711, 80 Stat. 1105 (Nov. 2, 1966). This statute provides in part as noted in the margin below.
The Miller court emphasized that the exhaustion doctrine had nothing to do with federal jurisdiction to hear petitions by state prisoners but was grounded on principles of comity and a desire to give state courts the first opportunity to redress invalid state convictions. It then undertook to apply these principles to the practice in West Virginia noting that the usual postconviction remedy in the state was via habeas corpus. The State Constitution and statutes provided for original habeas corpus jurisdiction in both the Supreme Court of Appeals and the circuit courts, with appellate jurisdiction in the Supreme Court of Appeals to review the action of the circuit courts. However, the court ultimately concluded that the application to the circuit court was the appropriate method of seeking postconviction relief, observing that the Supreme Court of Appeals “does not appear to have the facilities to hold evidentiary hearings on original writs addressed to it.” 248 F.Supp. at 60. Reasoning that applications to the West Virginia Supreme Court of Appeals would result in hearings only if that court exercised its-discretion, the district court determined that “[a]s a practical matter the circuit court is the forum to petition in order to get a full State court evidentiary hearing.” 248 F.Supp. at 61. Accordingly, it held that since Miller had filed his petition for habeas corpus only in the Supreme Court of Appeals and not in the circuit court he had not exhausted his-state remedies. Miller’s petition was dismissed.
In dismissing the petitions of prisoners Runyon and Sheftic in the instant cases, the district court simply stated that its action was based on its decision in Miller. Counsel for these prisoners argue that the prisoners chose one of two alternative methods available under state law to attack their convictions and that they are not required to exhaust both alternatives to satisfy § 2254; that it would be futile to expect the circuit court to grant hearings after the Supreme Court of Appeals had denied the prisoners relief on the identical claims they would urge before the circuit court; and, that the court in Miller v. Boles, supra, 248 F.Supp. 49, makes two erroneous assumptions: (1) that the scope of habeas corpus in West Virginia is akin to federal habeas corpus, and (2) that the circuit courts do grant full and fair evidentiary hearings. Petitioners’ counsel cite two recent decisions of the West Virginia Supreme Court of Appeals to support their contention that there is much confusion as to whether all constitutional violations can be raised via state habeas corpus. It was stated to us during argument that since the district court’s decision in Miller v. Boles 111 petitions for habeas corpus have been filed in the Circuit Court of Marshall County, said county being the site of the state penitentiary, and only one has been granted. It is urged that as a practical matter it is virtually impossible to secure an evidentiary hearing in the West Virginia state courts.
We conclude that these judgments of the district court in the instant cases should be reversed and that the decision in Miller v. Boles, from which no appeal was taken, must be disapproved.
When these prisoners filed their petitions for habeas corpus in the Supreme Court of Appeals they were utilizing an avenue of relief opened to them by both the West Virginia Constitution and statutes. No law or constitutional provision required them to first seek habeas corpus relief in any circuit court of West Virginia. The only requirement that prisoners first present their petitions for writs of habeas corpus in the state’s circuit courts is found in the decision in the Miller case where the court attempted to apply the principle of comity embodied in 28 U.S.C. § 2254, despite the provision in the West Virginia Constitution that application could be made originally to the Supreme Court of Appeals.
While the Supreme Court of the United States has not decided this precise question it has held in other circumstances that where two alternative methods exist it is necessary to utilize only one in order to give the state courts an opportunity to consider and pass upon the matter presented. See Brown v. Allen, 344 U.S. 443, 447-450, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950); Wade v. Mayo, 334 U.S. 672, 677, 68 S.Ct. 1270, 92 L.Ed. 1647 (1948). In United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407 (3 Cir. 1952), it was held that a petition for a writ of habeas corpus to the Supreme Court of Pennsylvania and the denial of certiorari by the United States Supreme Court were sufficient to exhaust state remedies despite the fact that the lower courts of the state could entertain petitions for writs of habeas corpus. The court explained that while a denial of habeas corpus was not res judicata “we are nonetheless of the opinion that no lower Pennsylvania Court could be reasonably expected, in view of the action of the Supreme Court of Pennsylvania and of the Supreme Court of the United States, to grant the writ to Almeida.” Id. at 824. See Lane v. Warden, Maryland Penitentiary, 320 F.2d 179 (4 Cir. 1963).
While the 1967 amendment to the West Virginia statute clearly states that a matter will not be considered to have been previously adjudicated unless there has been a full and fair hearing in the state courts, or a waiver by the prisoner, we do not feel that these prisoners should now be relegated to the state courts.
In Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), the Supreme Court, after granting certiorari to determine whether Nebraska had to provide its prisoners with a procedure to raise federal constitutional issues, took notice of a Nebraska legislative amendment providing such a remedy and dismissed the writ and remanded to the Supreme Court of Nebraska. However, that case is distinguishable from the cases here on appeal. The Nebraska Supreme Court had previously held it had no authority to hear the prisoner’s case, while the Supreme Court of Appeals of West Virginia clearly had such authority, even prior to the recent amendment. In addition, in Case v. State of Nebraska, the prisoner had not reached the lower federal courts and there was no real issue of exhaustion of remedies. In the instant case the prisoners are in the federal courts and the state has had ample opportunity to pass on their claims for relief. While there has been no decision on the merits in the cases before us we think that the comity principles embodied in § 2254 do not require a return of these cases to the state courts for presentation of the identical claims anew.
These cases at bar are also distinguishable from White v. Swenson, D.C., 261 F. Supp. 42 (1966), a decision by the federal district court for Western Missouri sitting en banc. The court indicated that the state courts should be given every opportunity to rule on the merits of the prisoner’s claim before the federal courts entertained habeas corpus petitions. However, that court was not confronted with the situation where, as here, state prisoners have reasonably satisfied every possible demand made upon them by West Virginia law as it existed at the time they filed their petitions with the Supreme Court of Appeals for postconviction relief. These prisoners have waited too long to now be told to return to the state courts of West Virginia with the same claims they presented there as early as 1964. Any tangential benefits which might accrue to the cause of federalism by directing these prisoners back to the state courts are greatly outweighed by the real benefit to these prisoners by permitting them to finally present their claims in the federal courts. The judgments of the district court will be reversed and these cases remanded to that court for further proceedings consistent with this opinion.
Reversed and remanded.
. W.Va.Code, ch. 62, art. 8, § 4 (1931).
. “(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
“(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
. W.Va.Const., art. VIII, § 3, W.Va.Oode, § 53-4-1 (1966).
. W.Va.Const., art. VIII, § 12, W.Va.Oode, § 53-4-1 (1966).
. W.Va.Oode § 58-5-1 (e) (1966).
. The court pointed out, however, that the Supreme Court of Appeals had the power to transfer the case to an appropriate court for a hearing. W.Va.Oode, § 53-4-2 (1966).
. State ex rel. Scott v. Boles, W.Va., 147 S.E.2d 486 (1966); State ex rel. Smith v. Boles, W.Va., 146 S.E.2d 585 (1965).
. See notes 3, 4, and 5.
. Subsequent to the decision in Miller v. Boles, supra, and subsequent to the presentation of arguments on this appeal the legislature of West Virginia revised the habeas corpus law and postconvietion procedure, reaffirmed the constitutional provision vesting original jurisdiction in the state Supreme Court by giving that court authority to grant the writ in the first instance, hold hearings and/or take evidence upon the return of such writ. The legislature did not accept the formula of Miller v. Boles and, at least by implication, rejected such approach. Enrolled S.B. No. 38 (Jan. 25, 1967), amending West Virginia Code, chapter 53, by adding thereto a new Article 4A. This amendment provides that West Virginia prisoners may now raise federal constitutional issues in the state courts, W.Va. Code, § 53-4A-l(a) (1967 amendment); and that they must be given a full and fair evidentiary hearing, W.Va.Code, § 53-4A-7 (a) (1967 amendment). The amendment further provides that the court hearing the matter must make findings of fact, state conclusions of law and the grounds, state or federal, on which resolution of the prisoner’s claim is based. W. Va.Code, § 53-4A-7(e) (1967 amendment). This 1967 amendment appears to afford adequate postconviction remedies to West Virginia prisoners.
. The actual issue before the court in White v. Swenson, supra, was whether a state prisoner whose appeal had been dismissed in the state courts for failure to timely move for a new trial had exhausted his state remedies. The court held that he should file a motion for state postconviction relief before coming to the federal courts. 261 F.Supp. 56-57.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
HUNTER v. WADE.
No. 3575.
United States Court of Appeals Tenth Circuit.
Sept. 7, 1948.
Rehearing Denied Oct. 8, 1948.
PHILLIPS, Chief Judge, dissenting.
Frederick Bernays Wiener, Sp. Asst, to the Atty. Gen. (Randolph Carpenter, U. S. Atty. and James W. Wallace, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellant.
R. T. Brewster, of Kansas City, Mo., and N. E. Snyder, of Kansas City, Kan., for appellee..
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN,' Circuit Judges.
BRATTON, Circuit Judge.
Frederick W. Wade, hereinafter referred to as petitioner, was a Private First Class in the 76th Infantry Division of the Army, engaged in the prosecution of the war in the European theater. He was charged under the ninety-second Article of War, 41 Stat. 805, 10 U.S.C.A. § 1564, with the rape of a German woman. A duly constituted general court-martial began the hearing of the charge. The prosecution and the defense each introduced testimony, rested and submitted oral argument; and the court closed. Thereafter on the same day, the court reopened, announced its desire to hear the evidence of three certain persons, and further announced that the court would be continued until a later date to be set by the trial judge advocate. About seven days later, the Commanding General of the 76th Infantry Division withdrew the charge from the court-martial and transmitted it to the 'Commanding General of the Third Army with a recommendation of trial by court-martial. About two weeks later, the Commanding General of the Third Army transmitted the charge to the Commanding General of the Fifteenth Army with the request that the Fifteenth Army assume court-martial jurisdiction. The charge was then referred for trial to a general court-martial of the Fifteenth Army. Petitioner seasonably presented to that court-martial a plea of double jeopardy in bar of trial. The plea was denied; petitioner was found guilty; and he was sentenced to dishonorable discharge, total forfeitures, and imprisonment for life. The period of confinement was later reduced to twenty years. As thus modified, the sentence was approved and confirmed; and petitioner was confined in the federal penitentiary at Leavenworth, Kansas, for its service. He instituted this proceeding in habeas corpus against the warden of the penitentiary to secure his discharge from further confinement on the ground that the sentence was void for the reason that he was twice placed in jeopardy for the same offense. The warden answered; petitioner was produced ill court; evidence was submitted; and the court entered judgment ordering the discharge of petitioner, D.C., 72 F.Supp. 755. Thereafter, the court entered an order denying the motion of the warden for a reconsideration. The warden appealed from the final judgment of discharge and also from the order denying the motion for reconsideration.
Article 1 § 8, cl. 14, of the Constitution of the United States empowers Congress to make rules for the government and regulation of the land and naval forces; and in the exercise of that power, Congress enacted Articles of War, effective June 4, 1920, 41 Stat. 787, 10 U.S.C.A. § 1471 et seq. Article 3 provides that courts-martial shall be of three kinds, general, special, and summary. Article 4 provides that all officers in the military service, and officers of the Marine Corps when detached for service with the Army, shall be competent to serve on courts-martial for the trial of persons lawfully brought before such courts for trial. Article 5 provides that general courts-martial may consist of any number of officers not less than five. Article 8 provides for the appointment of members of general courts-martial; Article 12 provides that general courts-martial shall have power to try any persons subject to military law for any crime or offense made punishable by the articles; and Article 92 provides that any person subject to military law who commits murder or rape shall suffer death or imprisonment for life, as the court-martial may direct, but that no person shall be tried by court-martial for such offenses committed within the States or the District of Columbia in time of peace. General courts-martial duly created in accordance with the controlling provisions of law are legal tribunals, clothed with authority to determine with finality any case over which they have jurisdiction; and their proceedings when duly confirmed are not open to collateral attack in a civil court except on jurisdictional grounds. Accordingly, where the petitioner in a case of this kind is being detained by virtue of a sentence of a general court-martial, the scope of the inquiry is limited to questions of jurisdiction of the court-martial, whether that court was properly constituted, whether it had jurisdiction of the subject matter and of the person of the accused, and whether the sentence was one authorized by law. Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236; McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692; Benjamin v. Hunter, 10 Cir., 169 F.2d 512. But within the range of such limited review, a federal court has jurisdiction in habeas corpus to determine whether the sentence of the court-martial was void for the reason that petitioner was twice placed in jeopardy for a single offense, and if so to order his discharge. In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Amrine v. Tines, 10 Cir., 131 F.2d 827.
It is the general rule that an accused is in jeopardy within the meaning of the guaranty against double jeopardy contained in the Fifth Amendment to the Constitution of the United States when he is put on trial in a court of competent jurisdiction upon an indictment or information sufficient in form and substance to sustain a conviction, and a jury has been empaneled and sworn; and where the case is tried to the court without the intervention of a jury, j eopardy attaches when the court begins the hearing of evidence. McCarthy v. Zerbst, 10 Cir., 85 F.2d 640, certiorari denied, 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; Clawans v. Rives, supra.
But where it appears during the trial of a criminal case that a juror made false statements in the course of his voir dire examination respecting his relation to the defendant, where it appears that a member of the jury has been guilty of improper conduct in relation to the trial, where it appears that a juror was a member of the grand jury that returned the indictment, where it appears that a juror is too ill to proceed with the trial, where it appears that the jury is unable to agree upon a verdict, or where it appears that some other fairly like uncontrollable circumstance has arisen, and the court in the exercise of its sound judicial discretion discharges the jury, the constitutional guaranty against double jeopardy does not bar a subsequent trial before a different jury. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 36 L.Ed. 146; Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Pratt v. United States, 70 App.D.C. 7, 102 F.2d 275. However, the constitutional guaranty protects an accused against a second trial where the jury in the first trial was discharged solely on the ground that witnesses for the government were absent and therefore their testimony could not be adduced. Cornero v. United States, 9 Cir., 48 F.2d 69, 74 A.L.R. 797; United States v. Shoemaker, 27 Fed.Cas. 1067, No. 16, 279; State v. Richardson, 47 S.C. 166, 25 S.E. 220, 35 L.R.A. 238; Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am.St.Rep. 188, 10 Ann. Cas. 1085; People v. Barrett, 2 Caines, N.Y., 304, 2 Am.Dec. 239; Pizano v. State, 20 Tex.App. 139, 54 Am.Rep. 511.
A valid charge was pending before the first court-martial. The court had jurisdiction of the subject matter and of the person of petitioner, and evidence was introduced. Petitioner concedes that the Commanding General of the 76th Infantry Division was vested with authority to discharge the court or to withdraw the charge from it before completion of the trial, but that after the withdrawal petitioner could not be again placed on trial before another court-martial over his plea of former jeopardy. It does not appear from the record before us that any underlying basis for the action was set forth in the order withdrawing the charge and directing that no further action be taken by the court; but in the communication of the Commanding General of the 76th Infantry Division transmitting the charge and related papers to the Commanding General of the Third Army it was recited in clear terms that the case had been referred to the court-martial for trial; that the trial was commenced; that the court continued the case in order that the testimony of certain witnesses could be obtained; and that due to the tactical situation, the distance to the residence of such witnesses had become so great that the case could not be completed within a reasonable time. It thus appears that the withdrawal of the charge from the court-martial was not predicated solely upon the absence of the witnesses at the time of the trial, through oversight or otherwise, or solely upon the absence of the witnesses at the time the charge was withdrawn. Instead, it is fairly clear that the withdrawal was based upon the tactical situation intervening and developing after the trial which made it infeasible to produce such persons before the court-martial at its then location. Distance of the persons from the then situs of the court was one element entering into the situation. Perhaps other essential elements inhered in it. That the armed forces of the United States engaged in the prosecution of the war in that theater were moving rapidly and that conditions in the field were more or less fluid are matters of history of which judicial notice may be taken. It may be that due to hazardous surroundings, fluidity of conditions, or other emergencies arising out of the prosecution of the war, it was wholly infeasible if not impossible to produce the persons before the court at its location at the time of the withdrawal of the charges. On the other hand, it may be that distance or emergencies growing out of the prosecution of the war did not make it impossible or unreasonably difficult to produce the witnesses before the court and obtain their testimony. It may be that the case should have remained with the court instead of being withdrawn. But that was a matter to be determined by the Commanding Gen- ' eral in the exercise of his sound discretion; and, taking into consideration the conditions and circumstances presenting them- ' selves, he determined in the exercise of such discretion that the tactical situation made it necessary or advisable to withdraw the case from the court-martial and to refer it to the Commanding General of the Third Army for trial before another court-martial. Such determination of the Commanding General was somewhat analogous insofar as double jeopardy is concerned to the determination of tire judge of a civil court that in view of a sudden and uncontrollable emergency arising during the progress of the trial of a criminal case the jury should be discharged arid the defendant subsequently tried before another jury. Under the circumstances, the withdrawal of the case1 from the court-martial on the ground that the tactical situation made it impossible to produce the witnesses before the court-martial within a reasonable time and the subsequent trial before another court-martial did not subject petitioner to double jeopardy in violation of the Fifth Amendment.
The judgment of discharge is reversed, and the cause is remanded with directions to enter judgment denying the petition for the writ of hábeas corpus and to remand petitioner to the custody of respondent.
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_casesource
|
158
|
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.
MARTIN v. OHIO
No. 85-6461.
Argued December 2, 1986
Decided February 25, 1987
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Scalia, JJ., joined. Powell, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, and in Parts I and III of which Blackmun, J., joined, post, p. 236.
James R. Willis argued the cause for petitioner. With him on the briefs was Margery B. Koosed.
George J. Sadd argued the cause for respondent. With him on the brief was John T. Corrigan
Randall M. Dana, Gregory L. Ayers, Richard L. Aynes, Margery B. Koosed, and J. Dean Carro filed a brief for the Ohio Public Defender Commission as amicus curiae urging reversal.
Justice White
delivered the opinion of the Court.
The Ohio Code provides that “[e]very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof by a preponderance of the evidence, for an affirmative defense, is upon the accused.” Ohio Rev. Code Ann. §2901.05(A)(1982). An affirmative defense is one involving “an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.” Ohio Rev. Code Ann. §2901.05(C)(2)(1982). The Ohio courts have “long determined that self-defense is an affirmative defense,” 21 Ohio St. 3d 91, 93, 488 N. E. 2d 166, 168 (1986), and that the defendant has the burden of proving it as required by § 2901.05(A).
As defined by the trial court in its instructions in this case, the elements of self-defense that the defendant must prove are that (1) the defendant was not at fault in creating the situation giving rise to the argument; (2) the defendant had an honest belief that she was in imminent danger of death or great bodily harm, and that her only means of escape from such danger was in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid danger. App. 19. The question before us is whether the Due Process Clause of the Fourteenth Amendment forbids placing the burden of proving self-defense on the defendant when she is charged by the State of Ohio with committing the crime of aggravated murder, which, as relevant to this case, is defined by the Revised Code of Ohio as “purposely, and with prior calculation and design, causing] the death of another.” Ohio Rev. Code Ann. §2903.01 (1982).
The facts of the case, taken from the opinions of the courts below, may be succinctly stated. On July 21, 1983, petitioner Earline Martin and her husband, Walter Martin, argued over grocery money. Petitioner claimed that her husband struck her in the head during the argument. Petitioner’s version of what then transpired was that she went upstairs, put on a robe, and later came back down with her husband’s gun which she intended to dispose of. Her husband saw something in her hand and questioned her about it. He came at her, and she lost her head and fired the gun at him. Five or six shots were fired, three of them striking and killing Mr. Martin. She was charged with and tried for aggravated murder. She pleaded self-defense and testified in her own defense. The judge charged the jury with respect to the elements of the crime and of self-defense and rejected petitioner’s Due Process Clause challenge to the charge placing on her the burden of proving self-defense. The jury found her guilty.
Both the Ohio Court of Appeals and the Supreme Court of Ohio affirmed the conviction. Both rejected the constitutional challenge to the instruction requiring petitioner to prove self-defense. The latter court, relying upon our opinion in Patterson v. New York, 432 U. S. 197 (1977), concluded that the State was required to prove the three elements of aggravated murder but that Patterson did not require it to disprove self-defense, which is a separate issue that did not require Mrs. Martin to disprove any element of the offense with which she was charged. The court said, “the state proved beyond a reasonable doubt that appellant purposely, and with prior calculation and design, caused the death of her husband. Appellant did not dispute the existence of these elements, but rather sought to justify her actions on grounds she acted in self defense.” 21 Ohio St. 3d, at 94, 488 N. E. 2d, at 168. There was thus no infirmity in her conviction. We granted certiorari, 475 U. S. 1119 (1986), and affirm the decision of the Supreme Court of Ohio.
In re Winship, 397 U. S. 358, 364 (1970), declared that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” A few years later, we held that Winship’s mandate was fully satisfied where the State of New York had proved beyond reasonable doubt each of the elements of murder, but placed on the defendant the burden of proving the affirmative defense of extreme emotional disturbance, which, if proved, would have reduced the crime from murder to manslaughter. Patterson v. New York, supra. We there emphasized the preeminent role of the States in preventing and dealing with crime and the reluctance of the Court to disturb a State’s decision with respect to the definition of criminal conduct and the procedures by which the criminal laws are to be enforced in the courts, including the burden of producing evidence and allocating the burden of persuasion. 432 U. S., at 201-202. New York had the authority to define murder as the intentional killing of another person. It had chosen, however, to reduce the crime to manslaughter if the defendant proved by a preponderance of the evidence that he had acted under the influence of extreme emotional distress. To convict of murder, the jury was required to find beyond a reasonable doubt, based on all the evidence, including that related to the defendant’s mental state at the time of the crime, each of the elements of murder and also to conclude that the defendant had not proved his affirmative defense. The jury convicted Patterson, and we held there was no violation of the Fourteenth Amendment as construed in Winship. Referring to Leland v. Oregon, 343 U. S. 790 (1952), and Rivera v. Delaware, 429 U. S. 877 (1976), we added that New York “did no more than Leland and Rivera permitted it to do without violating the Due Process Clause” and declined to reconsider those cases. 432 U. S., at 206, 207. It was also observed that “the fact that a majority of the States have now assumed the burden of disproving affirmative defenses — for whatever reasons — [does not] mean that those States that strike a different balance are in violation of the Constitution.” Id., at 211.
As in Patterson, the jury was here instructed that to convict it must find, in light of all the evidence, that each of the elements of the crime of aggravated murder has been proved by the State beyond reasonable doubt, and that the burden of proof with respect to these elements did not shift. To find guilt, the jury had to be convinced that none of the evidence, whether offered by the State or by Martin in connection with her plea of self-defense, raised a reasonable doubt that Martin had killed her husband, that she had the specific purpose and intent to cause his death, or that she had done so with prior calculation and design. It was also told, however, that it could acquit if it found by a preponderance of the evidence that Martin had not precipitated the confrontation, that she had an honest belief that she was in imminent danger of death or great bodily harm, and that she had satisfied any duty to retreat or avoid danger. The jury convicted Martin.
We agree with the State and its Supreme Court that this conviction did not violate the Due Process Clause. The State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design. It did not seek to shift to Martin the burden of proving any of those elements, and the jury’s verdict reflects that none of her self-defense evidence raised a reasonable doubt about the State’s proof that she purposefully killed with prior calculation and design. She nevertheless had the opportunity under state law and the instructions given to justify the killing and show herself to be blameless by proving that she acted in self-defense. The jury thought she had failed to do so, and Ohio is as entitled to punish Martin as one guilty of murder as New York was to punish Patterson.
It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i. e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such an instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate. 397 U. S., at 364. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.
We are thus not moved by assertions that the elements of aggravated murder and self-defense overlap in the sense that evidence to prove the latter will often tend to negate the former. It may be that most encounters in which self-defense is claimed arise suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design, but Ohio does not shift to the defendant the burden of disproving any element of the state’s case. When the prosecution has made out a prima facie case and survives a motion to acquit, the jury may nevertheless not convict if the evidence offered by the defendant raises any reasonable doubt about the existence of any fact necessary for the finding of guilt. Evidence creating a reasonable doubt could easily fall far short of proving self-defense by a preponderance of the evidence. Of course, if such doubt is not raised in the jury’s mind and each juror is convinced that the defendant purposely and with prior calculation and design took life, the killing will still be excused if the elements of the defense are satisfactorily established. We note here, but need not rely on, the observation of the Supreme Court of Ohio that “[ajppellant did not dispute the existence of [the elements of aggravated murder], but rather sought to justify her actions on grounds she acted in self-defense.” 21 Ohio St. 3d, at 94, 488 N. E. 2d, at 168.
Petitioner submits that there can be no conviction under Ohio law unless the defendant’s conduct is unlawful, and that because self-defense renders lawful what would otherwise be a crime, unlawfulness is an element of the offense that the state must prove by disproving self-defense. This argument founders on state law, for it has been rejected by the Ohio Supreme Court and by the Court of Appeals for the Sixth Circuit. White v. Arn, 788 F. 2d 338, 346-347 (1986); State v. Morris, 8 Ohio App. 3d 12, 18-19, 455 N. E. 2d 1352, 1359-1360 (1982). It is true that unlawfulness is essential for conviction, but the Ohio courts hold that the unlawfulness in cases like this is the conduct satisfying the elements of aggravated murder — an interpretation of state law that we are not in a position to dispute. The same is true of the claim that it is necessary to prove a “criminal” intent to convict for serious crimes, which cannot occur if self-defense is shown: the necessary mental state for aggravated murder under Ohio law is the specific purpose to take life pursuant to prior calculation and design. See White v. Arn, supra, at 346.
As we noted in Patterson, the common-law rule was that affirmative defenses, including self-defense, were matters for the defendant to prove. “This was the rule when the Fifth Amendment was adopted, and it was the American rule when the. Fourteenth Amendment was ratified.” 432 U. S., at 202. Indeed, well into this century, a number of States followed the common-law rule and required a defendant to shoulder the burden of proving that he acted in self-defense. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 882, and n. 10 (1968). We are aware that all but two of the States, Ohio and South Carolina, have abandoned the common-law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant. But the question remains whether those States are in violation of the Constitution; and, as we observed in Patterson, that question is not answered by cataloging the practices of other States. We are no more convinced that the Ohio practice of requiring self-defense to be proved by the defendant is unconstitutional than we are that the Constitution requires the prosecution to prove the sanity of a defendant who pleads not guilty by reason of insanity. We have had the opportunity to depart from Leland v. Oregon, 343 U. S. 790 (1952), but have refused to do so. Rivera v. Delaware, 429 U. S. 877 (1976). These cases were important to the Patterson decision and they, along with Patterson, are authority for our decision today.
The judgment of the Ohio Supreme Court is accordingly
Affirmed.
The dissent believes that the self-defense instruction might have led the jury to believe that the defendant had the burden of proving the ab-senee of prior calculation and design. Indeed, its position is that no instruction could be clear enough not to mislead the jury. As is evident from the text, we disagree. We do not harbor the dissent’s mistrust of the jury; and the instructions were sufficiently clear to convey to the jury that the State’s burden of proving prior calculation did not shift and that self-defense evidence had to be considered in determining whether the State’s burden had been discharged. We do not depart from Patterson v. New York, 432 U. S. 197 (1977), in this respect, or in any other.
Question: What is the court whose decision the Supreme Court reviewed?
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025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
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204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
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207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_weightev
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SCHOOLER et al. v. SCHOOLER et al.
No. 9641.
United States Court of Appeals District of Columbia Circuit.
Argued June 7,1948.
Decided Nov. 22, 1948.
On Petition for Rehearing, Feb. 14, 1949.
STEPHENS, Chief Judge, dissenting on rehearing.
Mr. Leo A. Rover, of Washington, D. C., with whom Mr. Harry Friedman, of Washington, D. C., was on the brief, for appellants.
Messrs. David Wiener and Samuel R.. Blanken, both of Washington, D. C., for appellees.
Before STEPHENS, Chief Judge, and EDGERTON and PROCTOR, Circuit-Judges.
PROCTOR, Circuit Judge.
At the trial of this action in the District Court, the defendants (appellees) moved for judgment at the close of the plaintiffs’ case in chief. The motion was granted and judgment entered. Plaintiffs appeal.
The evidence tended to prove the following facts:
Louis Schooler had six children by three marriages. Wilfred Schooler, Yetta B. Lesser, Mary S. Reiskin and Ida Sherman, plaintiffs (appellants), are children of his first and second marriages. Jack and Robert Schooler are children of his third marriage to Sophie Schooler. These three persons were defendants. For brevity all parties will be referred to by their first names. Louis and Sophie owned several parcels of income-producing real estate in the District of Columbia as tenants by ■the entirety. On October 9, 1941, while at a hospital awaiting an . operation, Louis made a will leaving all his estate to Sophie. He further stated -it .to be his “will and wish” that during the lifetime of Sophie ■one-fourth of the net income from the rented property should be paid to Wilfred; that he should control the bookkeeping and accounting and be consulted as to repairs; that Jack should receive $25 a week and act as manager in the “collections and maintenance” of the property, and that upon the death of Sophie all the property should be divided equally among the six children. Wilfred was named executor. Pursuant to an understanding when the will was made an instrument denoted “agreement” was ex--ecuted by Louis and Sophie. It bore' thé' same date as the will, although drawn and signed some days later. This writing stated that in consideration of the execution of the will Sophie agreed that “-the will and wish clause” thereof should become a part of the agreement, and that she would carry out the same as though it-were a bequest of property belonging solely to Louis in which she should have only a life estate. On June 25, 1942, an “agreement” was executed by Sophie, Wilfred--and Jack. After reciting ownership of the real estate by Louis and Sophie as tenants by the entirety and the above-mentioned agreement it was stated that in consideration of the execution of the will of Louis and other valuable consideration passing between the parties Sophie agreed that so long as she lived Wilfred would receive one-fourth of the net income from the rented property and that Jack should collect the rents and manage the same and receive $25 weekly therefor. This instrument and -the earlier one dated October 9th, 1941, were signed and sealed by the parties thereto and acknowledged before a notary. Louis died July 30, 1942. His will, although filed with the registrar, has not been offered for probate. For sometime after Louis’ death Sophie made payments to Wilfred totaling more than $2,900, allegedly from the rental income.
Finally, about four and one-half years after Louis’ death Wilfred filed his complaint against Sophie and Jack for accounting of moneys ■ received since the death of Louis and for judgment for moneys claimed to be due him out of income from the -property. Yetta, Mary and Ida, other children of the first and second marriages, were ‘added as plaintiffs. They prayed for judgment declaring all six children vested with a remainder in the real property subject to a life estate in Sophie. Robert was joined as a defendant. Answering, the defendants claimed sole ownership in Sophie, as survivqr of the tenancies by the entire-ties, of all real estate covered by the will, and that the property was not subject to disposal by Louis; that there was no valid consideration for the agreement of October 9, 1941; that Sophie executed the same to please the whim of her ill husband; "that the agreement of June 25, 1942, was without consideration and that payments made to Wilfred were to avert arguments which caused her much physical harm. She included a counterclaim to recover back the moneys paid.
Proffers of testimony were made by plaintiffs, to prove certain other acts and declarations by Sophie indicating acknowledgment and acceptance of the terms of the will and agreement of October 9, 1941, and as tending to show her understanding and intentions respecting the same. These were rejected by the court. The trial court found that all the properties in question were owned at the time of Louis’ death jointly by him and Sophie as tenants by the entirety; that upon Louis’ death all were in the sole ownership of Sophie; that there was no evidence to establish in any plaintiff a right, title or interest in said properties; that Sophie had paid no moneys to Wilfred pursuant to any legal obligation, and that plaintiffs had not sustained the burden of proof in attempting to establish their claims. Accordingly, judgment'was entered for defendants and the cause dismissed. The counterclaim was dismissed without prejudice.
Appellants contend that the “agreement” of October 9, 1941, is in legal effect a deed, vesting a life estate in Sophie, subject to a charge against the net income of 25% to Wilfred and $25 weekly to Jack, with remainders in. fee to the six children upon the death of Sophie. References are also • made to the writing as -a gift or trust. But in either case a deed was necessary. No ■ explanation is advanced for the instrument. of June 25, 1942, except that it “clarifies” and “corroborates” the one of October 9th. The primary question then is whether this last mentioned instrument meets the requirements of a deed.
The following provisions of Title 45, District of Columbia Code 1940 bear directly upon the question:
Section 106.
“No estate of inheritance, or for life, or for a longer term than one year, in any real property, corporeal or incorporeal, in the District of Columbia, or any declaration or limitation of uses in the same, for any of the estates mentioned, shall be created or take effect, except by deed signed and sealed by the grantor, lessor, or de-clarant, or by will.”
Section 301.
“The following forms or forms to the like effect shall be sufficient, and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed to, or introduced in the said forms. Any other form conforming to the rules herein laid down shall be sufficient.”
Measuring the instrument by the foregoing requirements, enlightened by the forms set forth, which cannot be disregarded, we think it is not sufficient to grant or create any estate or úse in the property. A deed is a written expression of the act of granting or creating an estate or use in land. It bespeaks a present act, rather than a promise for future action. Agricultural Bank v. Rice, 45 U.S. 225, 4 How. 225, 11 L.Ed. 949; Williams v. Paine, 169 U.S. 55, 76, 18 S.Ct. 279, 42 L.Ed. 658; Chavez v. De Bergere, 231 U.S. 482, 34 S.Ct. 144, 58 L.Ed. 325. The distinction readily appears as between a deed to land and a contract to sell the same. One is a grant, the other only a promise to grant. The writing of October -9th at best is but a promise by Sophie to create certain estates in favor of the children. That falls far short of-a grant or declaration actually conveying or creating an estate.
Appellees raise the question of consideration. They contend that there was no actual consideration for Sophie’s agreement. According to the instrument itself Louis’ will was the moving consideration for Sophie’s promise to “carry out the will and wish clause” of his will. We cannot see that the will did lend any legal support for Sophie’s undertaking. Admittedly all Louis’ property covered by the will was jointly owned with his wife. Hence if she survived him ownership in its entirety would remain in her. Nothing done by him alone could alter that result. Such is the peculiar nature of a tenancy by the entirety. Therefore, the devise to Sophie was a’futile act, without substance to form any legal consideration for her promise. Obviously, ' however; one may convéy his property to another without material inducement, if in so doing the rights of others, such as a creditors, are not prejudiced. Hence Louis and Sophie might have conveyed their property to. their children without any material consideration. But, as we have pointed out, such a gift could only be effected by their joint deed conforming to the requirements of law. The fact that they did not so convey the property, but kept full ownership and control raises a strong inference that they had no intention at that time of relinquishing their absolute rights by granting any interest or estate in the property to their children. It is also consistent with the action they attempted by expressing in writing their intention as to future disposition, of the property in favor of their children. If the writing is tested as a contract, rather than a deed as contended, Sophie’s undertaking therein is purely of an executory nature and would need the support of a valid consideration.
A deed conveying real property or any interest therein, or declaring or limiting any use or trust thereof cannot take effect without delivery to a person in whose favor it is executed. D.C.Code 1940, § 45 — 501. Here there was no delivery of the instrument of October 9, 1941. That conclusion is implicit' in the findings of the trial judge. We think it is justified. Although manual delivery may not be necessary, there must be some “words or acts showing an intention that the deed shall be complete and operative” and “the intent of the parties is to be determined by what occurred at the time of the transaction.” Walker v. Warner, 31 App.D.C. 76, 85, 89; Atlas Portland Cement Co. v. Fox, 49 App.D.C. 292, 266 F. 1021. It may be reasonably inferred from the evidence that the paper remained with the attorney who drafted it for Louis and Sophie from the time of its execution until the trial, when he produced it under a subpoena. In these circumstances he was their attorney. Hence legal possession rested in them until Louis’ death. Thereafter it continued in Sophie alone. No action appears to have been taken at any time by either suggestive of a manual delivery of the paper to any person other than their own attorney. So clearly there was no actual delivery of the instrument to any of the children. Nor do we think the testimony including that proffered and rejected, bearing upon the intentions of Louis or Sophie was sufficient to prove a constructive delivery. This is especially true in view of the presumption of nondelivery arising by reason of the paper remaining in possession of the makers. Safford v. Burke, 130 Misc. 12, 223 N.Y.S. 626; Witham v. Witham, 156 Or. 59, 66 P.2d 281, 110 A.L.R. 253; Vreeland v. Vreeland, 48 N.J.Eq. 56, 21 A. 627.
Reverting to the agreement of June 25, 1942, between Sophie, Wilfred and Jack, it should be noted that this instrument expressly relates to the properties owned by Louis and Sophie as tenants by the entirety. It was made while Louis was still alive. Therefore, without his joining, it could have no force or effect as a grant of any estate or interest in the property. It should also be noted that Wilfred is making no claim under this or the earlier instrument as a contract of employment. He and the other plaintiffs stake their claims upon the single proposition that the “agreement” of October 9th operated to grant or create certain interests or estates in their favor.
The point made by appellants that error was committed in rejection of proffered testimony to show the intention and understanding of Louis and Sophie need not be considered' further. Whatever their intentions they cannot cure the fatal deficiencies of either instrument to operate as a deed. The judgment is
Affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
AMERICAN LUMBER CORPORATION, Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION.
No. 89-1340.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(b) Sept. 6, 1989.
Sept. 22, 1989.
Harold E. Kohn and Marguerite R. Goodman, Kohn, Savett, Klein & Graf, P.C., Philadelphia, Pa., for appellant.
Michael J. Mangan and Ronald P. Schiller, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
Before MANSMANN, NYGAARD and ALDISERT, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
In this contract dispute, resolved by the district court’s grant of summary judgment to National Railroad Passenger Corporation (AMTRAK), the appellant American Lumber Corporation urges us to reverse the district court’s grant of summary judgment on the basis that the release signed by American Lumber’s assignor did not contemplate the current breach of contract action. Additionally, American Lumber urges us to reverse the district court’s denial of American Lumber’s motion to compel the production of information sought through a Freedom of Information Act request. We hold that the district court did not err in granting summary judgment in favor of AMTRAK on the basis of the release signed by American Lumber’s assignor. Furthermore, we conclude that, under the facts presented here, information provided by AMTRAK in response to a FOIA request is not subject to Rule 26 discovery.
I.
American Lumber Corporation is a wholesale distributor of building materials, including railroad ties and switch timbers. AMTRAK purchased ties and timbers in connection with a federally-funded improvement program administered by the Federal Railroad Administration. We are here concerned with five written contracts in which Roscoe Murphy Jr., Inc. (Murphy) agreed to sell a specific number of ties to AMTRAK for a set price. Murphy was awarded the contract under AMTRAK’s Minority Business Enterprise (MBE) program. Later AMTRAK learned that Murphy was engaged in a joint venture with American Lumber.
Murphy delivered ties to AMTRAK, which AMTRAK accepted, and invoiced AMTRAK at the contract price. All but one of the purchase orders contained a price revision clause which permitted the contract price to be adjusted only on the basis of changes in labor and material costs. In addition, the purchase orders contained an express prohibition on the modification of the contract except in writing signed by the contracting officer.
AMTRAK paid over 100 invoices submitted by Murphy at the contract price. Murphy then told AMTRAK’s Purchasing Department that his costs had increased and requested escalation pursuant to the price revision clause. Because Murphy complained of a cash flow problem, he convinced the AMTRAK personnel to pay his invoices at the escalated prices, while he obtained the necessary supporting documentation from the lumber mills. This scheme came to a halt, however, when the Accounts Payable Department refused to pay subsequent invoices because the submitted prices did not reflect the purchase order prices.
In 1978 and 1979, Murphy filed civil rights complaints against AMTRAK in the United States District Court for the Eastern District of Pennsylvania based on claims of racial discrimination in regard to AMTRAK’s methods of awarding contracts. On June 3, 1981, Murphy signed a release which was the result of a settlement between Murphy and AMTRAK in which Murphy agreed to withdraw all claims against AMTRAK in return for consideration of $36,500.
In September, 1983, American Lumber filed a complaint in the Court of Common Pleas of Philadelphia County against AMTRAK claiming to be Murphy’s assignee and third-party beneficiary of the Murphy-AMTRAK contracts. AMTRAK removed the action to the United States District Court for the Eastern District of Pennsylvania on January 1, 1986. On June 24, 1986, American Lumber filed for relief in United States Bankruptcy Court for the Eastern District of Pennsylvania. With the district court’s approval, AMTRAK filed a counterclaim against American Lumber alleging that its overpayment to Murphy occurred as a result of fraud, breach of contract, unjust enrichment and violation of the Racketeer Influenced Corrupt Organization (RICO) statute, 18 U.S. C.A. § 961 et seq. (West 1984).
During discovery, the district court granted numerous extensions to both parties — but more particularly to American Lumber — to file responses and amend pleadings. Additionally, the court extended the discovery deadline three times at American Lumber’s request. After the district court refused to grant the fourth extension, American Lumber issued a Freedom of Information Act (FOIA) request to AMTRAK. When AMTRAK submitted a list of documents it felt were exempt from FOIA disclosure, American Lumber filed a motion for sanctions on the ground that AMTRAK was intentionally withholding discovery material. The district court denied American Lumber’s motion for sanctions.
AMTRAK moved for summary judgment on grounds that (1) American Lumber’s claims were barred by a release executed by its assignor, Murphy, on June 3, 1981, and (2) American Lumber’s claims were barred by Clause 48 of the purchase orders which prohibited oral modification. The district court granted summary judgment for AMTRAK and American Lumber moved for reconsideration. American Lumber also moved to compel the production of documents by AMTRAK and to dismiss AMTRAK’s counterclaim against American Lumber. The district court denied these motions. With respect to AMTRAK’s counterclaim, the district court stayed all proceedings on the counterclaim without prejudice to AMTRAK seeking relief from the stay in bankruptcy court. This resulted in the entry of a final judgment. American Lumber appeals from the denial of its motions and the granting of the motion for summary judgment to AMTRAK.
Our review of the district court’s grant or denial of a motion for summary judgment is plenary. We must determine whether there exists a genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Review of the district court’s decision concerning discovery motions, however, is limited to a determination of whether the district court abused its discretion. Consequently, it is American Lumber’s burden as appellants to demonstrate that the district court’s failure to compel AMTRAK to produce the documents deprived American Lumber of critical evidence or otherwise resulted in fundamental unfairness. Wisniewski v.. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir.1987).
II.
American Lumber’s first contention is that the 1981 release of Murphy’s racial discrimination suit against AMTRAK does not bar American Lumber’s contract suit. American Lumber argues that the release was intended to bar only Murphy’s discrimination claims and does not apply to the contract claims. Conversely, AMTRAK contends the 1981 settlement was in the form of a general release which released all of Murphy’s claims: those currently being asserted as well as those which could be asserted by Murphy. Since American Lumber’s claims are those assigned to it by Murphy, AMTRAK argues, the claims which could have been asserted by Murphy were released by the 1981 settlement.
We must examine the language of the release to determine whether it is limited to a release of the racial discrimination claims, as American Lumber contends, or whether it is a general release of all claims, as AMTRAK contends.
The 1981 release states in pertinent part:
THIS IS A RELEASE * * * * * %
Roscoe Murphy, Jr. and Roscoe Murphy, Jr., Inc., ... do remise, release, quitclaim and forever discharge NATIONAL RAILROAD PASSENGER CORPORATION, its officers, directors, employees, representatives, agents predecessors, successors and assigns, from any and all manner of claims, actions, causes of action, damages, costs, expenses and compensation whatsoever which ROSCOE MURPHY, JR. and ROSCOE MURPHY, JR., INC., or either of them, asserted or could have asserted against NATIONAL RAILROAD PASSENGER CORPORATION ... in the legal actions captioned ROSCOE MURPHY JR., and ROSCOE MURPHY, JR. INC., v. NATIONAL RAILROAD CORPORATION, Nos. 78-4149 and 79-3766, pending in the United States District Court for the Eastern District of Pennsylvania, which actions are to be dismissed with prejudice.
[T]his release shall be complete and shall not be subject to any claim of mistake of fact and that it expresses a FULL AND COMPLETE STATEMENT of liability claimed and denied and ... is intended to avoid litigation and to be final.
ROSCOE MURPHY JR. and ROSCOE MURPHY, JR., INC. further agree ... that there is absolutely no agreement or reservation not clearly expressed herein, that the sum of money stated herein is all that both are ever to receive and that the execution hereof is with full knowledge that it covers all possible claims.
Appendix at 166 (emphasis added).
The express language clearly states that Murphy released all claims which he asserted or could have asserted against AMTRAK in the lawsuits. Thus, we must determine whether the contract claims asserted by American Lumber could have been asserted by Murphy.
Initially, we note that the contract claims pressed here by American Lumber had fully ripened at the time Murphy executed the release. American Lumber’s complaint alleges, inter alia, that AMTRAK accepted lumber products (ties) from American Lumber during the period July, 1978 through January, 1981 and continues to use $750,-000 worth for which Murphy was not paid. With respect to those products, the record discloses that by letters dated June 23, September 9, and October 9, 1980 AMTRAK denied payment of the invoices submitted by Murphy because Murphy was behind in his deliveries and because the invoices did not reflect the contract purchase order price. Murphy was specifically told that “until such time as the contract is officially modified to reflect any price revisions, our Accounts Payable Department will not honor and, in fact, will return any invoice wherein the invoice price does not match the subject purchase order price.” Appendix at 141. Clearly, Murphy was fully aware by October, 1980, that AMTRAK was challenging his invoice submissions and Murphy could have brought a claim for breach of contract at that time.
The parties agree that Pennsylvania substantive law of contract interpretation applies to the terms of the release, while federal procedural law applies to the procedures involved in bringing and maintaining Murphy’s lawsuit in federal court. We turn here to federal procedural law and Murphy’s federal lawsuit. Under the Federal Rules of Civil Procedure, there was no procedural bar which would have prohibited Murphy from including the contract claims in his discrimination suit against AMTRAK. The liberal amendment of pleadings permitted by Fed.R.Civ.P. 15 would have allowed Murphy to amend his complaint to include the ripened contract claims. Following this policy of liberal amendment, we have permitted the amendment of complaints even years after the filing of the original lawsuit. See, e.g., Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.1984) (delay alone is an insufficient reason to deny amendment). The “touchstone is whether the non-moving party will be prejudiced if the amendment is allowed.” Howze, 750 F.2d at 1212. American Lumber does not allege — nor is there any evidence in the record — AMTRAK would have been prejudiced by Murphy amending his discrimination suit to include the contract claims of which both parties were fully cognizant at the time of the release.
Moreover, Rule 18 of the Federal Rules of Civil Procedure permits a party to join as many legal, equitable or even maritime claims as the party has against the opposing party. These claims can be independent or alternate claims to the original complaint. As AMTRAK notes, the parties to both the discrimination suit and the contract dispute are the same, the witnesses are the same and many of the underlying facts of both cases are the same. Clearly, from a standpoint of judicial economy, a joinder of the two actions would have been more convenient for both parties. We conclude that the present action could have been brought by Murphy prior to the release of his claims on June 3, 1981.
American Lumber asks us to distinguish between the release here and the release upheld by us in Three Rivers Motor Co. v. Ford Motor Co., 522 F.2d 885 (3d Cir.1975) because the document here does not contain the language “general release” as in Three Rivers. Without the presence of the language, American Lumber contends, the only claims Murphy intended to release were the racial discrimination claims he asserted or could have asserted. We disagree with this narrow reading of Three Rivers which more properly turned on the general language of the document rather than on the title of it.
Three Rivers involved an anti-trust suit brought by Three Rivers Motors, a franchisee, against the Ford Motor Corporation. Several years prior to the suit at bar, Three Rivers complained that because another local competitor franchisee, Triangle Motors, operated in the same area, Three Rivers had suffered considerable operating losses. The president of Three Rivers began negotiations to resign the franchise with Ford, but did not wish to sacrifice the loss of the corporate investment in parts and accessories. Three Rivers succeeded in negotiating a settlement with Ford in which Ford agreed to buy Three Rivers’ inventory in return for the execution of a general release. Three Rivers, 522 F.2d 887. Three Rivers would then move to another location which was not in direct competition with another Ford franchise. A few years later, Three Rivers brought an anti-trust suit alleging that Ford had violated anti-trust law by entering into a price fixing arrangement to enable fleet customers to purchase their new vehicles from Triangle Motors, Three River’s old competitor. The question before us was whether the general release was broad enough to encompass the antitrust claims, thereby barring the action against Ford. 522 F.2d at 888. We concluded that “[ujnless the comprehensive language releasing all types of claims is to be read as much ado about nothing, the release must cover more than those claims arising from Ford’s repurchase of Three Rivers’ inventory.” 522 F.2d at 897. “The only reasonable conclusion is that the release was intended as a general settlement of accounts.” Id.
Returning to the release at issue here, we find the same general language present that existed in the Three Rivers’ release. Of significance is the language in the second paragraph which provides that “the sum of money stated herein is all that both [Murphy and Murphy, Inc.] are ever to receive and that the execution hereof is with full knowledge that it covers all possible claims.” Unless we are to disregard the plain language of the release, we must conclude that the parties to the agreement intended that the release was to cover all claims Murphy had asserted against AMTRAK or could have asserted. Moreover, if Murphy himself had attempted to bring an action for breach of contract against AMTRAK after the June 3, 1981 release was signed, his action would have been barred. Since American Lumber, as Murphy’s assignee, can possess no greater rights than its assignor, its action is also barred. General Electric Credit Corporation v. Security Bank, 244 A.2d 920, 923 (D.C.App.1968) (“an assignee of a chose of action takes it subject to all defenses, including any valid set-off based on facts existing at the time of the assignment”).
American Lumber also argues that AMTRAK waived the statute of frauds provision (Clause 48) in the contract which prohibited oral modification of the contract when AMTRAK paid some of the invoices Murphy had submitted before protesting about his failure to follow the procedure for price revision. Because we have determined that the district court properly held that Murphy’s release of claims against AMTRAK bars American Lumber’s lawsuit, we have no need to decide this issue.
III.
American Lumber’s final argument is that the district court erred by denying American Lumber’s motion to compel the production of documents discovered in response to American Lumber’s Freedom of Information Act request. We note at the outset that the Supreme Court has generally looked with disfavor upon parties that have tried to use the FOIA to circumvent the discovery rules. A party’s contention that it can “obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA.” United States v. Weber Aircraft Corp., 465 U.S. 792, 801, 104 S.Ct. 1488, 1493, 79 L.Ed.2d 814 (1984). See also Baldrige v. Shapiro, 455 U.S. 345, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (disclosure of exempt information by way of civil discovery would undermine the purpose of confidentiality envisioned by Congress); and, National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (the primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for discovery).
The district court did not merely accept AMTRAK’s statement that the records were exempt and therefore, not applicable to the lawsuit. The district court carefully scrutinized the documents in camera before determining that the information contained therein would not change AMTRAK’s responses to interrogatories. Consequently, the district court denied American’s motion on the merits, rather than on the basis of policy reasons. We cannot say that the district court abused its discretion by denying American’s motion in light of that determination.
IV.
We conclude that the district court did not err by granting summary judgment for AMTRAK on the basis that American Lumber’s assignor had released all claims against AMTRAK. Nor did the district court abuse its discretion by denying American Lumber’s motion for reconsideration or its motion to compel production. For the above reasons, we will affirm the judgment of the district court granting summary judgment for AMTRAK.
. Through the discovery process in this lawsuit, AMTRAK learned that Murphy had been paid $1,316,100 in excess of the original contract prices hut his actual cost increase had only been $364,941 leaving a balance due AMTRAK of $951,159.
. The operative portion of the Ford release stated:
of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, ... controversies, agreements, promises, variances, trespasses, damages, judgments, ... whatsoever in law, in admiralty or in equity, which against Ford, ... ever had, now have or which they or any of them hereafter can, shall or may have....
Three Rivers, 522 F.2d at 895.
. We cite to a District of Columbia case because the parties agree that District of Columbia law applies to the assignment of Murphy’s accounts receivable to American Lumber since the contract was created in the District of Columbia.
. In addition, American Lumber appeals from the district court’s denial of America Lumber’s motion to modify the order granting summary judgment to AMTRAK on the grounds that the price revision clauses in the contracts at issue were governed by market costs rather than the supplier's actual costs. Since we have already concluded that the district court properly determined that American Lumber’s claim is barred by the release, we do not need to address this issue.
American Lumber also appeals from the district court’s denial of its motion for reconsideration on the basis of newly discovered evidence. This argument is baseless in light of the district court’s decision which denied the motion on the merits because the evidence submitted by American was not "newly discovered”. We will not disturb the district court’s determination absent an abuse of discretion, which certainly did not occur here.
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_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
PUBLIC UTILITIES COMMISSION OF CALIFORNIA v. UNITED STATES.
No. 23.
Argued January 7, 1958.
Decided March 3, 1958.
J. Thomason Phelps and Everett C. McKeage argued the cause and filed a brief for appellant.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Hansen and Henry Geller.
Briefs of amici curiae urging reversal were filed by Will Wilson, Attorney General, James N. Ludlum, First Assistant Attorney General, and J. W. Wheller, Assistant Attorney General, for the Railroad Commission of Texas et al., Phillip Robinson for the Texas Independent Motor Carriers, Daryal A. Myse for Hughes Transportation, Inc., and Austin L. Roberts, Jr. and R. Everette Kreeger for the National Association of Railroad and Utilities Commissioners.
Mr. Justice Douglas
delivered the opinion of the Court.
Section 530 of the California Public Utilities Code, Cal. Stat. 1955, c. 1966, provides in part:
“Every common carrier subject to the provisions of this part may transport, free or at reduced rates:
“(a) Persons for the United States, ....
“The commission may permit common carriers to transport property at reduced rates for the United States, state, county, or municipal governments, to such extent and subject to such conditions as it may consider just and reasonable. Nothing herein shall prevent any common carrier subject to the provisions of this part from transporting property for the United States, state, county, or municipal governments, at reduced rates no lower than rates which lawfully may be assessed and charged by any other such common carrier or by highway permit carriers as defined in the Highway Carriers’ Act.” (Italics added.)
There is a large volume of military traffic between points in California. For many years the United States has negotiated special agreements with carriers as to the rates governing the transportation of government property. Property for the armed services has usually been transported at negotiated rates substantially equal to or lower than those applicable to regular commercial shipments.
The United States filed this suit for declaratory relief, 28 U. S. C. § 2201, in a three-judge District Court, asking that § 530 be declared unconstitutional insofar as it prohibits carriers from transporting government property at rates other than those approved by the Commission and requesting relief by injunction.
The District Court rendered judgment for the United States, 141 F. Supp. 168. The case is here by appeal, 28 U. S. C. §§ 1253, 2101 (b). We noted probable jurisdiction. 352 U. S. 924.
We are met at the outset with a contention that there is no “actual controversy” between the United States and the Commission within the meaning of 28 U. S. C. § 2201. If so, there is a fatal constitutional, as well as statutory, defect because of the manner in which the judicial power is defined by Art. III, § 2, cl. 1, of the Constitution. See Aetna Life Ins. Co. v. Haworth, 300 U. S. 227. The argument is that there is no allegation that the Commission had done or had threatened to do anything adverse to the United States or its agent.
Prior to 1955, § 530 provided that every common carrier “may transport, free or at reduced rates: . . . property for the United States . ...” In 1955, § 530 was amended to eliminate that provision and substitute the provision already noted that the Commission “may permit” common carriers to transport property of the United States at reduced rates “to such extent and subject to such conditions as it may consider just and reasonable.” As also noted above, this amendment further provided that no common carrier shall be prevented from trans- . porting property of the United States “at reduced rates no lower than rates which lawfully may be assessed and charged by any other such common carrier or by highway permit carriers . . . .” Prior to this amendment the Commission had authorized highway permit carriers to deviate from the prescribed minimum rates in connection with the transportation of property for the armed forces of the United States. To prevent the continuation of this exemption the Commission on August 16, 1955, canceled the deviation authorization for permit carriers as of September 7, 1955, the effective date of the amendment to § 530. On request of the Department of Defense the Commission postponed the effectiveness of that cancellation until December 5, 1955. On November 29, 1955, the Commission denied a further extension, stating:
“The provision of Item No. 20 of Minimum Rate Tariff No. 2 which permits carriers to deviate from the minimum rates in connection with the transportation of property for the Armed Forces of the United States constitutes an exception which was established prior to the amendment of Section 530. So long as this provision remains in effect, not only the permitted carriers but also the common carriers are without the rate regulation which clearly was contemplated under the recent legislative enactment. . . .
“The intent of the legislature should be carried out without further delay. Accordingly, the petition for further postponement will be denied. This action will in no way preclude carriers from filing applications for such rate exceptions as they may consider to be just and reasonable.”
As a result of this denial, common carriers could no longer transport any United States property at lower negotiated rates without Commission approval. For § 486 requires common carriers to file their rates with the Commission. Section 493 provides that no common carrier shall engage in transportation until its schedules of rates have been filed. Section 494 provides that no common carrier “shall, charge, demand, collect, or receive a different compensation for the transportation of persons or property . . . than the applicable rates . . . specified in its schedules filed . . . .” (A like provision is contained in Art. XII, § 22 of the California Constitution.) Moreover the Public Utilities Code provides penalties for violations of its provisions and orders issued thereunder. §§ 2107, 2112. These penalties are applicable not only to the carrier but to shippers as well. California Public Utilities Code, § 2112. As stated by the District Court, “If a United States officer were to negotiate with a carrier for 'reduced rates’ without permitting the defendant to determine whether it 'considered’ the conditions of the contract 'just and reasonable’, he could be thrown into the county jail.” 141 F. Supp., at 186.
The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Comm’n v. Wycoff. Co., 344 U. S. 237, where a carrier sought relief in a federal court against a state commission in order “to guard against the possibility,” id., at 244, that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete — whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval.
There is a large group of cases involving the doctrine of primary jurisdiction which requires the complainant first to seek relief in the administrative proceeding before a remedy will be supplied by the courts. See Far East Conference v. United States, 342 U. S. 570; United States v. Western Pacific R. Co., 352 U. S. 59. In related situations we have insisted that an aggrieved party pursue his administrative remedy before the state agency and the state court prior to bringing his complaint to the federal court, so that the true interpretation of the state law may be known and its actual, as opposed to its theoretical, impact on the litigant authoritatively determined before the federal court undertakes to sit in judgment. See Alabama Federation of Labor v. McAdory, 325 U. S. 450; Leiter Minerals, Inc., v. United States, 352 U. S. 220.
These cases are inapposite. We know the statute applies to shipments of the United States. We know that it is unlawful to ship at reduced rates unless the Commission approves those rates. The question is whether the United States can be subjected to the discretionary authority of a state agency for the terms on which, by grace, it can make arrangements for services to be rendered it. That issue is a constitutional one that the Commission can hardly be expected to entertain. If, as in Aircraft Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, and Allen v. Grand Central Aircraft Co., 347 U. S. 535, an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy plainly should be pursued. But where the only question is whether it is constitutional to fasten the administrative procedure onto the litigant, the administrative agency may be defied and judicial relief sought as the only effective way of protecting the asserted constitutional right. In that posture the case is kin to those that hold that “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.” Staub v. City of Baxley, 355 U. S. 313, 319, and cases cited; Thomas v. Collins, 323 U. S. 516.
It is argued that 28 TJ. S. C. § 1342, bars the grant of relief in this case. It provides that the federal courts “shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
“(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution . . . .”
Assuming, arguendo, that the Act applies to the sovereign who made it, there is no violation of its mandate in the relief granted here. In the present case, the challenge is not to a rate “order” but to a statute which requires the United States to submit its negotiated rates to the California Commission for approval. The United States wants to be rid of the system that subjects its procurement services to that form of state supervision.
We come to the merits. Congress has provided a comprehensive policy governing procurement. 10 U. S. C. (Supp. V) §§ 2301-2314. While competitive bidding is the general policy, § 2304 provides that “the head of an agency may negotiate such a purchase or contract, if—
“(2) the public exigency will not permit the delay incident to advertising;
“(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;
“(12) the purchase or contract is for property or services whose procurement he determines should not be publicly disclosed because of their character, ingredients, or components; . . . .”
The regulations, promulgated to carry out these statutory provisions, are numerous and extensive. One provides that “volume shipments” shall be referred “at the earliest practicable time to the appropriate military traffic management office for a determination of the reasonableness of applicable current rates and, when appropriate, for negotiation of adjusted or modified rates.”
The Army regulations provide that the “least costly means of transportation will be selected which will meet military requirements and still be consistent with governing procurement regulations and transportation policies as expressed by Congress, contingent upon carrier ability to provide safe, adequate, and efficient transportation.” Navy regulations provide that when applicable freight rates “appear excessive” they “may be negotiated for more equitable rates.” The Air Force regulations provide for negotiations for adjustments or modifications of “commercial carriers' rates . . . only after a determination has been made as to the unreasonableness, unjustness or otherwise apparent unlawfulness of effective rates . ...”
It seems clear that these regulations — which have the force of law, Leslie Miller, Inc., v. Arkansas, 352 U. S. 187; Standard Oil Co. v. Johnson, 316 U. S. 481 — sanction the policy of negotiating rates for shipment of federal property and entrust the procurement officers with the discretion to determine when existing rates will be accepted and when negotiation for lower rates will be undertaken. It also seems clear that under § 530 of the California Public Utilities Code this discretion of the federal officers may be exercised and reduced rates used only if the Commission approves. The question is whether California may impose this restraint or control on federal transportation procurement.
We lay to one side these cases which sustain nondiscriminatory state taxes on activities of contractors and others who do business for the United States, as their impact at most is to increase the costs of the operation. See, e. g., Esso Standard Oil Co. v. Evans, 345 U. S. 495; Smith v. Davis, 323 U. S. 111; Alabama v. King & Boozer, 314 U. S. 1; James v. Dravo Contracting Co., 302 U. S. 134. We also need do no more than mention cases where, absent a conflicting federal regulation, a State seeks to impose safety or other requirements on a contractor who does business for the United States. See, e. g., Baltimore & Annapolis R. Co. v. Lichtenberg, 176 Md. 383, 4 A. 2d 734, appeal dismissed, 308 U. S. 525; James Stewart & Co. v. Sadrakula, 309 U. S. 94. Penn Dairies v. Milk Control Comm’n, 318 U. S. 261, can likewise be put to one side. There the question, much mooted, was whether the federal policy conflicted with the state policy fixing the price of milk which the United States purchased. The Court concluded that the state regulation “imposes no prohibition on the national government or its officers.” Id., at 270. Here, however, the State places a prohibition on the Federal Government. Here the conflict between the federal policy of negotiated rates and the state policy of regulation of negotiated rates seems to us to be clear. The conflict is as plain as it was in Arizona v. California, 283 U. S. 423, 451, where a State sought authority over plans and specifications for a federal dam, in Leslie Miller, Inc., v. Arkansas, supra, where state standards regulating contractors conflicted with federal standards for those contractors, and in Johnson v. Maryland, 254 U. S. 51, where a State sought to exact a license requirement from a federal employee driving a mail truck. The conflict seems to us to be as clear as any that the Supremacy Clause, Art. VI, cl. 2, of the Constitution was designed to resolve. As Chief Justice Marshall said in M’Culloch v. Maryland, 4 Wheat. 316, 427,
“It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.”
The seriousness of the impact of California’s regulation on the action, of federal procurement officials is dramatically shown by this record.
It is the practice of the Government not only to negotiate separate rates which vary from the class or “paper rate” but also to negotiate a “freight all kinds” rate which will cover hundreds of diverse items for the supply of a division of the Army or for a vessel that are needed at one place at one particular time. There is no provision in the California Code or the regulations for the making of such shipments. The findings are that if the Code is applied here, this type of arrangement would be abolished:
“This would make it necessary for the shipping officers to classify the hundreds and thousands of different items used in military operations, to segregate such items in accordance with published tariffs and classifications, to rearrange the boxing and crating of such items in order to meet the classifications and requirements of commercial traffic and fill out voluminous documents. This additional process could cause delays as high as thirteen hours in the shipment of one truckload or carload. In many situations a delay of this sort would seriously hamper or disrupt the military mission for which the shipment was made.”
Moreover, no rates exist for much of the military traffic, which means that, unless the United States can negotiate rates for each shipment, the shipments will be delayed for Commission action unless shipped under the established rates which are higher than negotiated rates.
General Edmond C. R. Lasher of the United States Army, who was Assistant Chief of Transportation, testified at the trial:
“for us to make these arrangements at the Washington level with the various states, let us say 48 states, with 48 varieties of methods to follow, we would find ourselves in an administrative morass out of which we would never fight our way, we would never win the war.”
Affirmed.
Cal. Stat. 1951, c. 764, p. 2045.
California Public Utilities Code § 3515 defines a “highway permit carrier” as “every highway carrier other than a highway common carrier or a petroleum irregular route carrier.”
The purpose of this subsection is “to place the maximum responsibility for decisions as to when it is impracticable to secure competition in the hands of the agency concerned.” S. Rep. No. 571, 80th Cong., 1st Sess., p. 8. The Senate Report goes on to state: “The experiences of the war and contracts negotiated since the war in the fields of stevedoring, ship repairs, chartering of vessels, where prices are set by law or regulation, or where there is a single source of supply, have shown clearly that the competitive-bid-advertising method is not only frequently impracticable but does not always operate to the best interests of the Government. It is, therefore, intended that this section should be construed liberally and that the review of these contracts should be confined to the validity and legality of the action taken and should not extend to reversal of bona fide determinations of impracticability where any reasonable ground for, such determination exists.”
It would seem, therefore, that negotiation was contemplated where rates, fixed by a government agency, are involved. And see H. R. Rep. No. 109, 80th Cong., 1st Sess., pp. 8-9. As stated by W. John Kenney, Acting Secretary of the Navy, who submitted the draft of this bill:
“The primary purpose of the bill is to permit the War and Navy Departments to award contracts by negotiation when the national defense or sound business judgment dictates the use of negotiation rather than the rigid limitations of formal advertising, bid, and award procedures.” Hearings before House Committee on Armed Services on H. R. 1366, 80th Cong., 1st Sess., Vol. 1, p. 425.
10 U. S. C. § 3012 (g) provides, “The Secretary [of the Army] may prescribe regulations to carry out his functions, powers, and duties under this title.” For comparable provisions applicable to the Navy and Air Force see 10 U. S. C. § 6011 and 10 U. S. C. § 8012 (f) respectively.
Armed Services Procurement Regulations, 32 CFR, 1957 Cum. Pocket Supp., § 1.108 et seq.
Id., § 1.306-10.
Army Regulation 55-142, ¶ 2, dated April 19, 1956.
Navy Shipping Guide, Part I, Art. 1800 (d) (3) (20).
Air Force Manual 75-1, ¶ 80501 (b), dated July 10,1956.
Section 22 of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U. S. C. §22, exempts transportation for the United States from the rate provisions of that Act. The provision in the law, respecting land-grant rates, which imposes on the United States the obligation to pay “the full applicable commercial rates,” 49 U. S. C. § 65, applies only to rates fixed by the Interstate Commerce Commission and is made expressly subject to § 22 of the Interstate Commerce Act.
The findings of the District Court state:
“Under the theory of rate regulation in California and elsewhere, every common carrier is required to have in existence at all times a published rate to cover the shipment of every known item between every conceivable point. This rate structure is known as the class or ‘paper rate.,’ Since the channels of commercial traffic are regular and well defined in accordance with the stability of trade, large commercial shippers seldom use the class rate but negotiate rates with the carriers known as ‘commercial rates,’ which are peculiarly suited and adapted to the requirements of the commerce involved. These commercial rates are usually considerably lower than the class rates. Very little commercial traffic moves at the class rate.”
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
Ardis O. SMART, Appellant, v. Robert A. HEINZE, Warden, Folsom Prison, Represa, California, Appellee.
No. 19735.
United States Court of Appeals Ninth Circuit.
May 19, 1965.
Rehearing Denied June 21,1965.
Ardis Oliver Smart, in pro. per. Thomas C. Lynch, Atty. Gen., of Cal., Doris H. Maier, Asst. Atty. Gen., of Cal., Edsel W. Haws, Deputy Atty. Gen., of Cal., Sacramento, Cal., for appellee.
Before HAMLIN, BROWNING and DUNIWAY, Circuit Judges.
HAMLIN, Circuit Judge.
Appellant is a prisoner incarcerated in Folsom Prison. On July 20, 1964, appellant filed a complaint in the United States District Court for the Northern District of California, Northern Division, pursuant to the Civil Rights Act, 28 U.S.C. § 1343 and 42 U.S.C. § 1983, seeking damages and other equitable relief against the warden of Folsom Prison, appellee herein. In his complaint it is alleged that appellant prepared a petition for habeas corpus to be submitted to the United States District Court for the Northern District of California, Northern Division; that the resident notary public at the prison refused to notarize the petition upon the ground that it was not prepared on forms as required by Rule ND5 of the Rules of Practice of that court; that thereafter appellant attempted to mail the petition without notarization; and that the petition was not mailed, but was returned to him by prison officials on the ground that it did not comply with the requirements of Rule ND5 in that it was not prepared in the questionnaire form required by the Rule. At the time of filing of the complaint in the district court, appellant also moved for permission to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. On July 20, 1964, the District Court for the Northern District of California, Northern Division, entered its memorandum decision and order denying appellant’s motion to proceed with the action in for-ma pauperis. The court, by order dated July 29, 1964, denied appellant’s motion for a rehearing. This court on December 7, 1964, authorized appellant to prosecute this appeal in forma pauperis, and has jurisdiction to hear this appeal under 28 U.S.C. § 1291.
To proceed in forma pauperis is a privilege not a rig0ht. Clough v. Hunter, 191 F.2d 516, (10th Cir. 1951). It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis. Tate v. People, et al., 187 F.2d 98 (9th Cir. 1951); Huffman v. Smith, 172 F.2d 129 (9th Cir., 1949); Meek v. City of Sacramento, 132 F.Supp. 546 (N.D.Cal.1955).
The granting or refusing of permission to proceed in forma pauperis is a matter committed to the sound discretion of the district court. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963). The latitude of discretion accorded the ruling of the district court in such matters is especially broad in civil actions by prisoners against their wardens and other officials connected with the institution in which they are incarcerated.
The substance of appellant’s complaint is that the warden of Folsom Prison will not permit application for writs of habeas corpus to be notarized or mailed unless they are completed on forms provided under Rule ND5 of the District Court for the Northern District of California. Rule ND5 was adopted by that court on April 20, 1964, and provides that petitions for a writ of habeas corpus by persons in state custody shall be on forms supplied by the court. This rule, as are all such local rules of the various district courts, was promulgated pursuant to 28 U.S.C. § 2071 and Rule 83 of the Federal Rules of Civil Procedure. The authority to promulgate a rule such as Rule ND5 and its validity is beyond dispute.
The petition for a writ of habeas corpus which petitioner presented for notarization and mailing was not on the forms prescribed by the rules of the district court. Instead of using the forms therefor as provided by the rule, appellant filed a suit for damages against the warden.
The court below, in its memorandum decision and order stated:
“Rule ND5 was imposed by this Court, not the defendant, and the assailed conduct on the part of defendant was solely for the purposes of complying with and implementing this Court’s resolution. Accordingly, no valid claim has been stated against the defendant.”
We agree. We see no impropriety in the action of the prison officials in this case in following the rules of the court. Appellant’s complaint was patently frivolous. We hold that the district court did not abuse its broad discretion in denying appellant’s motion to proceed in forma pawperis.
Judgment affirmed.
. Rule ND5 of the United States District Court for the Northern District of California, Northern Division.
“1. Petitions for a writ of habeas corpus and motions filed in the Northern Division of this Court pursuant to 28 U.S.C. § 2255 (attacking a sentence imposed by this Court), by persons in custody, shall be typewritten (unless it is affirmatively made to appear that typing facilities are not available), signed and verified. Such petitions and motions shall be on forms supplied by the Court, copies of which are hereto appended. The instructions on said forms shall be strictly followed.
“2. Petitions and motions shall be addressed to the Clerk of the U. S. District Court for the Northern District, Northern Division, 650"Capitol Avenue, Sacramento, California. Petitioners shall send to the Clerk an original and one copy of the completed petition or motion form. No petition or motion shall be addressed to an individual judge, petitions shall be directed to the Clerk of the Court for assignment pursuant to the rules of this Court, provided that motions under 28 U.S.C. § 2255 shall, if possible, be assigned to the sentencing judge.”
. Weller v. Dickson, supra. See the concurring opinion by Duniway, Circuit Judge, therein, where it is stated—
“ * * * [W] hen £he action is a civil suit by a state prisoner against his jailers, whether under the Civil Rights Act or not. the district court should have, and has, a broad discretion, and can deny leave to proceed in forma pauperis even though the complaint does state a claim for relief, if the court is of the opinion that the plaintiff’s chances of ultimate success are slight.”
. Appellant has filed in this court a motion “to declare Rule ND5 unconstitutional and repugnant to Federal Court Rules,” which motion has been denied.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_caseorigin
|
160
|
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.
EDWARDS v. ARIZONA
No. 79-5269.
Argued November 5, 1980
Decided May 18, 1981
White, J., delivered the opinion of the Court, in which BrenNAN, Stewart, Marshall, BlackmuN, and Stevens, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 487. Powell, J., filed an opinion concurring in the result, in which Rehnquist, J., joined, post, p. 488.
Michael J. Meehan, by appointment of the Court, 447 U. S. 903, argued the cause and filed briefs for petitioner.
Crane McClennen, Assistant Attorney General of Arizona, argued the cause for respondent. With him on the briefs were Robert K. Corbin, Attorney General, and William J. Schafer III.
Justice White
delivered the opinion of the Court.
We granted certiorari in this case, 446 U. S. 950 (1980), limited to Question 1 presented in the petition, which in relevant part was “whether the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest confession, which was obtained after Edwards had invoked his right to consult counsel before further interrogation . . .
I
On January 19, 1976, a sworn complaint was filed against Edwards in Arizona state court charging him with robbery, burglary, and first-degree murder. An arrest warrant was issued pursuant to the complaint, and Edwards was arrested at his home later that same day. At the police station, he was informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966). Petitioner stated that he understood his rights, and was willing to submit to questioning. After being told that another suspect already in custody had implicated him in the crime, Edwards denied involvement and gave a taped statement presenting an alibi defense. He then sought to “make a deal.” The interrogating officer told him that he wanted a statement, but that he did not have the authority to negotiate a deal. The officer provided Edwards with the telephone number of a county attorney. Petitioner made the call, but hung up after a few moments. Edwards then said: “I want an attorney before making a deal.” At that point, questioning ceased and Edwards was taken to county jail.
At 9:15 the next morning, two detectives, colleagues of the officer who had interrogated Edwards the previous night, came to the jail and asked to see Edwards. When the detention officer informed Edwards that the detectives wished to speak with him, he replied that he did not want to talk to anyone. The guard told him that “he had” to talk and then took him to meet with the detectives. The officers identified themselves, stated they wanted to talk to him, and informed him of his Miranda rights. Edwards was willing to talk, but he first wanted to hear the taped statement of the alleged accomplice who had implicated him. After listening to the tape for several minutes, petitioner said that he would make a statement so long as it was not tape-recorded. The detectives informed him that the recording was irrelevant since they could testify in court concerning whatever he said. Edwards replied: “I’ll tell you anything you want to know, but I don’t want it on tape.” He thereupon implicated himself in the crime.
Prior to trial, Edwards moved to suppress his confession on the ground that his Miranda rights had been violated when the officers returned to question him after he had invoked his right to counsel. The trial court initially granted the motion to suppress, but reversed its ruling when presented with a supposedly controlling decision of a higher Arizona court. The court stated without explanation that it found Edwards’ statement to be voluntary. Edwards was tried twice and convicted. Evidence concerning his confession was admitted at both trials.
On appeal, the Arizona Supreme Court held that Edwards had invoked both his right to remain silent and his right to counsel during the interrogation conducted on the night of January 19. 122 Ariz. 206, 594 P. 2d 72. The court then went on to determine, however, that Edwards had waived both rights during the January 20 meeting when he voluntarily gave his statement to the detectives after again being informed that he need not answer questions and that he need not answer without the advice of counsel: “The trial court’s finding that the waiver and confession were voluntarily and knowingly made is upheld.” Id., at 212, 594 P. 2d, at 78.
Because the use of Edward’s confession against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, supra, we reverse the judgment of the Arizona Supreme Court.
II
In Miranda v. Arizona, the Court determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney. 384 U. S., at 479. The Court also indicated the procedures to be followed subsequent to the warnings. If the accused indicates that he wishes to remain silent, “the interrogation must cease.” If he requests counsel, “the interrogation must cease until an attorney is present.” Id., at 474.
Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his right to counsel and his right to remain silent on January 19, but that the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions. Contrary to the holdings of the state courts, Edwards insists that having exercised his right on the 19th to have counsel present during interrogation, he did not validly waive that right on the 20th. For the following reasons, we agree.
First, the Arizona Supreme Court .applied an erroneous standard for determining waiver where the accused has specifically invoked his right to counsel. It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). See Faretta v. California, 422 U. S. 806, 835 (1975); North Carolina v. Butler, 441 U. S. 369, 374-375 (1979); Brewer v. Williams, 430 U. S. 387, 404 (1977); Fare v. Michael C., 442 U. S. 707, 724-725 (1979).
Considering the proceedings in the state courts in the light of this standard, we note that in denying petitioner’s motion to suppress, the trial court found the admission to have been “voluntary,” App. 3, 95, without separately focusing on whether Edwards had knowingly and intelligently relinquished his right to counsel. The Arizona Supreme Court, in a section of its opinion entitled “Voluntariness of Waiver,” stated that in Arizona, confessions are prima facie involuntary and that the State had the burden of showing by a preponderance of the evidence that the confession was freely and voluntarily made. The court stated that the issue of voluntariness should be determined based on the totality of the circumstances as it related to whether an accused’s action was “knowing and intelligent and whether his will [was] overborne.” 122 Ariz., at 212, 594 P. 2d, at 78. Once the trial court determines that “the confession is voluntary, the finding will not be upset on appeal absent clear and manifest error.” Ibid. The court then upheld the trial court’s finding that the “waiver and confession were voluntarily and knowingly made.” Ibid.
In referring to the necessity to find Edwards’ confession knowing and intelligent, the State Supreme Court cited Schneckloth v. Bustamante, 412 U. S. 218, 226 (1973). Yet, it is clear that Schneckloth does not control the issue presented in this case. The issue in Schneckloth was under what conditions an individual could be found to have consented to a search and thereby waived his Fourth Amendment rights. The Court declined to impose the “intentional relinquishment or abandonment of a known right or privilege” standard and required only that the consent be voluntary under the totality of the circumstances. The Court specifically noted that the right to counsel was a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard, id., at 241, but held that “[t]he considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case.” Id., at 246. Schneck-loth itself thus emphasized that the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries. Here, however sound the conclusion of the state courts as to the voluntariness of Edwards’ admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.
Second, although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, at 372-376, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Miranda itself indicate'd that the assertion of the right to counsel was a significant event and that once exercised by the accused, “the interrogation must cease until an attorney is present.” 384 U. S., at 474. Our later cases have not abandoned that view. In Michigan v. Mosley, 423 U. S. 96 (1975), the Court noted that Miranda had distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and had required that interrogation cease until an attorney was present only if the individual stated that he wanted counsel. 423 U. S., at 104, n. 10; see also id., at 109-111 (White, J., concurring). In Fare v. Michael C., supra, at 719, the Court referred to Miranda’s “rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” And just last Term, in a case where a suspect in custody had invoked his Miranda right to counsel, the Court again referred to the “undisputed right” under Miranda to remain silent and to be free of interrogation “until he had consulted with a lawyer.” Rhode Island v. Innis, 446 U. S. 291, 298 (1980). We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.
In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U. S., at 298, n. 2.
But this is not what the facts of this case show. Here, the officers conducting the interrogation on the evening of January 19 ceased interrogation when Edwards requested counsel as he had been advised he had the right to do. The Arizona Supreme Court was of the opinion that this was a sufficient invocation of his Miranda rights, and we are in accord. It is also clear that without making counsel available to Edwards, the police returned to him the next day. This was not at his suggestion or request. Indeed, Edwards informed the detention officer that he did not want to talk to anyone. At the meeting, the detectives told Edwards that they wanted to talk to him and again advised him of his Miranda rights. Edwards stated that he would talk, but what prompted this action does not appear. He listened at his own request to part of the taped statement made by one of his alleged accomplices and then made an incriminating statement, which was used against him at his trial. We think it is clear that Edwards was subjected to custodial interrogation on January 20 within the meaning of Rhode Island v. Innis, supra, and that this occurred at the instance of the authorities. His statement, made without having had access to counsel, did not amount to a valid waiver and hence was inadmissible.
Accordingly, the holding of the Arizona Supreme Court that Edwards had waived his right to counsel was infirm, and the judgment of that court is reversed.
go Qr^ereg
The facts stated in text are for the most part taken from the opinion of the Supreme Court of Arizona.
It appears from the record that the detectives had brought the tape-recording with them.
The trial judge emphasized that the detectives had met with Edwards on January 20, without being requested by Edwards to do so, and concluded that they had ignored his request for counsel made the previous evening. App. 91-93.
The case was State v. Travis, 26 Ariz. App. 24, 545 P. 2d 986 (1976).
The jury in the first trial was unable to reach a verdict.
This issue was disputed by the State. The court, while finding that the question was arguable, held that Edwards’ request for an attorney to assist him in negotiating a deal was “sufficiently clear” within the context of the interrogation that it “must be interpreted as a request for counsel and as a request to remain silent until counsel was present.” 122 Ariz., at 211, 594 P. 2d, at 77.
We thus need not decide Edwards’ claim that the State deprived him of his right to counsel under the Sixth and Fourteenth Amendments as construed and applied in Massiah v. United States, 377 U. S. 201 (1964). In that ease, the Court held that the Sixth Amendment right to counsel arises whenever an accused has been indicted or adversary criminal proceedings have otherwise begun and that this right is violated when admissions are subsequently elicited from the accused in the absence of counsel. While initially conceding in its opening brief on the merits that Edwards’ right to counsel under Massiah attached immediately after he was formally charged, the State in its supplemental brief and during oral argument took the position that under Kirby v. Illinois, 406 U. S. 682, 689-690 (1972), and Moore v. Illinois, 434 U. S. 220, 226-227 (1977), the filing of the formal complaint did not constitute the “adversary judicial criminal proceedings” necessary to trigger the Sixth Amendment right to counsel. Under the State Constitution, “[n]o person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.” Ariz. Const., Art. 2, § 30. The State contends that the Sixth Amendment right to counsel does not attach until either the constitutionally required indictment or information is filed or at least no earlier than the preliminary hearing to which a defendant is entitled if the matter proceeds by complaint. Under Arizona law, a felony prosecution may be commenced by way of a complaint, Ariz. Rule of Criminal Procedure 22. The complaint is a “written statement of the essential facts constituting a public offense, made upon oath before a magistrate,” Rule 2.3, upon which the magistrate either issues an arrest warrant or dismisses the complaint. Rule 2.4. Once arrested, the accused must be taken before the magistrate for a hearing. Rule 4.1. At that hearing, the magistrate ascertains the accused’s true name and address, and informs him of the charges against him, his right to counsel, his right to remain silent, and his right to a preliminary hearing if charged via complaint. Rule 4.2. Unless waived, the preliminary hearing must take place no later than 10 days after the defendant is placed in custody. Rule 5.1. The purpose of the hearing is to determine whether probable cause exists to hold the defendant for trial. Rule 5.3. Against this background and in support of its position, the State relies on Moore v. Illinois, supra, where after recognizing that under Illinois law “[t]he prosecution in this case was commenced . . . when the victim’s complaint was filed in court,” we noted that “adversary judicial criminal proceedings” were initiated when the ensuing preliminary hearing occurred. Moore, supra, at 228. Cf. United States v. Duvall, 537 F. 2d 15, 20-22 (CA2) (the filing of a complaint and the issuance of an arrest warrant does not trigger the right to counsel under the Sixth Amendment, that right accruing only upon further proceedings), cert, denied, 426 U. S. 950 (1976). The Arizona Supreme Court did not address the Sixth Amendment question, nor do we.
In Brewer v. Williams, 430 U. S. 387 (1977), where, as in Massiah v. United States, 377 U. S. 201 (1964), the Sixth Amendment right to- counsel had accrued, the Court held that a valid waiver of counsel rights should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation' or other efforts to elicit incriminating information. In Massiah and Brewer, counsel had been engaged or appointed and the admissions in question were elicited in his absence. But in McLeod v. Ohio, 381 U. S. 356 (1965), we summarily reversed a decision that the police could elicit information after indictment even though counsel had not yet been appointed.
If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be “interrogation.” In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.
Various decisions of the Courts of Appeals are to the effect that a valid waiver of an accused’s previously invoked Fifth Amendment right to counsel is possible. See, e. g., White v. Finkbeiner, 611 F. 2d 186, 191 (CA7 1979) (“in certain instances, for various reasons, a person in custody who has previously requested counsel may knowingly and voluntarily decide that he no longer wishes to be represented by counsel”), cert, pending, No. 79-6601; Kennedy v. Fairman, 618 F. 2d 1242 (CA7 1980); United States v. Rodriguez-Gastelum, 569 F. 2d 482, 486 (CA9) (en banc) (stating that it makes no sense to hold that once an accused has requested counsel, “ [he] may never, until he has actually talked with counsel, change his mind and decide to speak with the police without an attorney being present”), cert, denied, 436 U. S. 919 (1978). See generally Cobbs v. Robinson, 528 F. 2d 1331, 1342 (CA2 1975); United States v. Grant, 549 F. 2d 942 (CA4 1977), vacated on other grounds sub nom. Whitehead v. United States, 435 U. S. 912 (1978); United States v. Hart, 619 F. 2d 325 (CA4 1980); United States v. Hauck, 586 F. 2d 1296 (CA8 1978). The rule in the Fifth Circuit is that a knowing and intelligent waiver cannot be found once the Fifth Amendment right to counsel has been clearly invoked unless the accused initiates the renewed contact. See, e. g., United States v. Massey, 550 F. 2d 300 (1977); United States v. Priest, 409 F. 2d 491 (1969). Waiver is possible, however, when the request for counsel is equivocal. Nash v. Estelle, 597 F. 2d 513 (CA5 1979) (en banc). See Thompson v. Wainwright, 601 F. 2d 768 (CA5 1979).
We need not decide whether there would have been a valid waiver of counsel had the events of January 20 been the first and only interrogation to which Edwards had been subjected. Cf. North Carolina v. Butler, 441 U. S. 369 (1979).
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
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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
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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
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039. California Central U.S. District Court
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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
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050. Georgia Middle U.S. District Court
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071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
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074. Minnesota U.S. District Court
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078. Missouri Western U.S. District Court
079. Montana U.S. District Court
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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
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094. Ohio Northern U.S. District Court
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
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108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
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189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
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192. Rhode Island U.S. Circuit for the District of Rhode Island
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197. Virginia U.S. Circuit for (all) District(s) of Virginia
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205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
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208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
HUFFMAN v. BOERSEN
No. 71-5097.
Argued April 19, 1972
Decided May 15, 1972
Leo Eisenstatt, by appointment of the Court, 404 U. S. 998, argued the cause and filed briefs for petitioner.
Vincent L. Doweling argued the cause and filed a brief for respondent.
Per Curiam.
We granted certiorari to review the constitutionality of Neb. Rev. Stat. § 25-1914 (1964) under which the Nebraska Supreme Court dismissed this indigent petitioner’s appeal for his failure to deposit the $75 cash or bond security for costs required of appellants by the statute. 404 U. S. 990 (1971). The judgment appealed from annulled petitioner’s marriage to respondent and dismissed his countersuit claiming paternity and custody of a child born to respondent. After our grant of certiorari, Nebraska enacted Legislative Bill 1120 providing, among other things, that the Nebraska courts “shall authorize . . . [an] appeal . . . without prepayment of . . . security, by a person who makes an affidavit that he is unable to . . . give security . . . ,” except that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” Counsel for both parties were of the opinion on oral argument here that this new statute is applicable to the instant case. Counsel for respondent also conceded that petitioner’s appeal on the paternity issue has merit. Accordingly, the judgment is vacated and the cause remanded to the Nebraska Supreme Court for reconsideration in light of the supervening statute.
It is so ordered.
“On appeal in any case taken from the district court to the Supreme Court the appellant . . . shall, within one month next after the rendition of the judgment or decree . . . sought to be reversed, vacated or modified, ... file in the district court a bond or undertaking in the sum of seventy-five dollars to be approved by the clerk of the district court, conditioned that the appellant shall pay all costs adjudged against him in the Supreme Court; or, in lieu thereof, shall make a cash deposit with said clerk of at least seventy-five dollars for the same purpose . . . .”
“Q. You told us today that you concede that the determination of the paternity question was insufficient, invalid I think is the word you used.
“Mr. Dowding. Yes, I’m willing to agree that [petitioner] did not have his day in court on the paternity issue.
“Q. And we could say so on a remand.
“Mr. Dowding. Yes. So stipulate.” Tr. of Oral Arg. 40.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_appel2_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed 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.
ABERLY et al. v. CRAVEN COUNTY, N. C. CRAVEN COUNTY, N. C., v. NATIONAL BANK OF NEW BERN et al.
Nos. 3580, 3595.
Circuit Court of Appeals, Fourth Circuit.
April 3, 1934.
Thos. D. Warren and L. I. Moore, both of New Bern, N. C. (Moore & Dunn and Warren & Warren, all of New Bern, N. C., on the brief), for Craven County.
R. E. Whitehurst and A. D. Ward, both of New Bern, N. C. (R. A. Nunn, H. P. Whitehurst, and C. L. Abernethy, all of New Bern, N. C., on the brief-), for National Bank of New Bern, Griffin, Schumacher, and stockholders of National Bank of New Bern.
W. B. Rouse, of New Bern, N. C., for Aberly and Hargett.
Before PARKER and SOPER, Circuit Judges, and WILLIAM C. COLEMAN, District Judge.
PARKER, Circuit Judge.
The National Bank of New Bern, which we shall refer to hereafter as the old bank, found itself in financial difficulties in the early part of 1929, and on March 20th of that year entered into a contract with the First National Bank of New Bern, which we shall refer to as the new bank. This new bank was organized to take over the business of the old; and from one of the records before us it appears that its capital stock was paid for by funds loaned by Craven county to a certain investment corporation, and loaned by that corporation to the stockholders of the new hank to enable them to subscribe to the stock. Under the contract between the old and new banks, all of the liabilities of the old hank, except liability to stockholders, were assumed by the new bank, and assets of a value $250,000 less than the liabilities so assumed were transferred to it. A demand note for this $250,000 difference was executed by the old bank to the new, and the remaining assets of the old bank were assigned as collateral security to this note. The new bank thereupon began business at the location and with the equipment of the old. The contract and accompanying transfers were executed by the directors of the old bank on March 20, 1929 and a liquidating agent was then ajsiminted for that bank. The action of the directors placing.it in liquidation was approved by a meeting of stockholders the following July. In October of that year the new bank became insolvent and was placed in the hands of a receiver, owing an amount in excess of half a million dollars on the indebtedness of the old bank which it had assumed.
Shortly before the receiver of the new bank was appointed, and at a time when its insolvency was evident to its officers, and stockholders, the $250,000 note of the old bank with the accompanying collateral was assigned to Craven county as security for the county funds which it held on deposit; the assignment of the note being made, according to the eounty’s contention, pursuant to a prior agreement. Suit was promptly instituted against the county by the receiver of the new bank to establish his right to the note and the collateral pledged by the old bank to secure it; and the transfer to the County was attacked as preferential. The comity prevailed in this litigation, however, and a decree was entered holding that it was entitled to the note and supporting collateral as security for a deposit account which was definitely adjudged to he $123,123.02. Of this amount it appeal's that $7,323.02 represented sinking funds of the county which were on deposit with the old bank. No appeal was taken from this decree; and no reason appears why it should not be held binding upon the parties.
Shortly before the termination of the suit by the receiver against the county, this suit was instituted by the county against the receiver and the old bank and its liquidating agent; and stockholders in that bank were made parties defendant by order of court subsequently entered. The bill alleged the indebtedness of the new bank on account of the deposit of the county, the pledge of the $250,000 note as security therefor, the inability of the county to realize anything in excess of a comparatively small amount on the collateral pledged with it, the necessity of enforcing the liability of the stockholders of the old bank to raise funds to discharge its obligations, the refusal of the Comptroller of the -Currency to appoint a receiver to enforce this liability,-and the refusal of the receiver of the new hank to apply for a receiver to the end that such liability might be enforced. It prayed for the appointment of a receiver for the old bank, the enforcement of the liability of its stockholders for the benefit of creditors, for judgment against the old bank on the $250,000 note, and for other relief relating to the sale of collateral. Answers were filed to the bill in which it was alleged that the $250,000 note was not executed by the old bank in the due course of business; that the new bank had failed to pay the obligations of the old bank which it had assumed to the extent of approximately $500,000; that the note was transferred to the county with a view of creating a preference; and that the county was not a holder thereof in due course. Necessity for the appointment of a receiver or for enforcing the liability of the stockholders of the old bank was denied on the ground that its only possible creditor was the holder of the $250,000 note and that this note was invalid and not collectible because of the failure of the new bank to pay off the obligations of the old. A replication filed by the eounty pleaded the decree in the former ease as establishing the right of the eounty to the $250,000 note, and set forth, among other things, that the suit was brought in behalf of itself and all other creditors of the old bank. The case was referred to a special master and a large volume of testimony was taken; but only a very small part of this has been certified as a part of the record. Additional portions have been certified by the clerk of the court below as addenda; but we cannot consider them, as they have not been made a part of the record by certificate of the judge.
The judge below found that the execution and delivery of the $250,000 note by the old bank to the new was as heretofore stated, but held that the note was not “the contract or engagement” of the old bank “incurred in the ordinary course of the banking business.” He further found that the new bank had failed to discharge deposit liabilities of the old to an amount in excess of $500,000, and held that there was a failure of consideration for the note. With respect to the rights of the county as holder, he found that no consideration passed at the time of the pledge to the county; that no prior promise to pledge had been made; that' the pledge had been made after a reasonable time for demand and payment had elapsed and the note had become past due; and that the eounty took it with notice of the equities existing between the maker and payee. He therefore held that the eounty was not a holder of the note in due course, but took it subject to the equities and defenses existing in favor of the old bank. There was a further finding that the transfer to the county was made by the bank in contemplation of insolvency and with intent to create a preference. On these findings and conclusions, a decree was entered dismissing the bill as against the stockholders, and the eounty has appealed. Two of the stockholders also have appealed, contending that the decree dismissing the bill should have been based on additional grounds; but manifestly they cannot appeal from a decree altogether in their favor, which will be sustained if any ground appears in the record which will sustain it. The record which has been certified in connection with their appeal, however, will be considered in connection with the appeal of the eounty, as it is a part of the record before the court below and has been certified as such by the judge.
We can dismiss at once all arguments to the effect that the transfer of the note to the county was void because preferential and made in contemplation of insolvency, as this is a question between the county and the receiver of the new bank with which the stockholders of the old bank have no concern. This is a question, moreover, which has been raised and settled in the suit brought by the receiver for that purpose; and, while the decision of the court in that suit may have been erroneous in view of the later decisions of the Supreme Court in the cases of Texas & Pacific R. Co. v. Pottorff, 54 S. Ct. 416, 78 L. Ed. -, and City of Marion v. Sneeden, 54 S. Ct. 421, 78 L. Ed. -, there was no appeal therefrom, and there can be no question as to its binding effect as between the parties. Tait v. Western Maryland R. Co.., 289 U. S. 620, 53 S. Ct. 700, 77 L. Ed. 1405; Id. (C. C. A. 4th) 62 F.(2d) 933. And we can likewise dismiss all contention that the county was a holder of the note in due course. It is clear that the eounty officers knew all about the purpose for which the note was given and the obligations assumed by the new bank as consideration therefor, and certainly the circumstances surrounding the transfer were sufficient to put them on notice that the new bank was on the verge of insolvency and unable to carry out the obligations which it had assumed. The judge’s findings' that the. transfer of the note to the county was without consideration, that its note was to bo deemed past due at that time because it had not been presented for payment within a reasonable time, and that the county was affected with notice of the equities existing between the maker and payee, are binding upon us unless clearly wrong; and there is nothing in the record which would justify us in reversing them. It is clear, therefore, that the county held the note, not as a holder in due course, but subject to any defenses which might have been asserted against it in the hands of the new bank; and the case narrows itself to two questions: (1) Whether the note is invalid for lack of power in the officers of the old bank to execute it; and (2) whether the failure of the new bank to meet the obligations assumed constitutes a defense which the stockholders of the old bank may assert to defeat their statutory liability as stockholders.
On the first question it appears that the note was executed as an incident of a sale made of the assets of the bank when it was facing insolvency and in an attempt to save its depositors and stockholders. The power of the directors to make such a transfer of assets and the validity of a note given under such circumstances have been decided too often to justify further discussion of the matter. See Hightower v. American National Bank, 263 U. S. 351, 44 S. Ct. 123, 68, L. Ed. 334; Wyman v. Wallace, 201 U. S. 230, 26 S. Ct. 495, 50 L. Ed. 738; Wannamaker v. Edisto National Bank of Orangeburg (C. C. A. 4th) 62 F.(2d) 696; Scott v. Norton Hardware Co. (C. C. A. 4th) 54 F.(2d) 1047, 1049; Richter v. Laredo National Bank (C. C. A. 5th) 62 F.(2d) 289; City Nat. Bank of Huron v. Fuller (C. C. A. 8th) 52 F.(2d) 870, 872, 79 A. L. R. 71; Harris v. Briggs (C. C. A. 8th) 264 F. 726; Hulse v. Argetsinger (D. C.) 12 F.(2d) 933; Wegman v. National Bank of Commerce (D. C.) 51 F.(2d) 288.
On the second question, the determinative facts have not been found by the court below and do not appear from the record before us. All that we feel certain of with respect to this question is that the stockholders of the old bank have not been relieved of their statutory liability as a result of the execution and transfer of the note. But whether the fund created by the enforcement of that liability should go to plaintiff as holder of the note or to depositors in the old bank whose claims for deposits the new bank has failed to pay is a question which should not be determined until all of the facts are fully before the court. If the depositors and creditors of the old bank, with knowledge of the circumstances attending the transfer of assets from the old bank to the new, entered into a novation whereby they not only accepted the new bank as their debtor, but also released the old bank from any obligation to them, then the old bank has suffered no loss as a result of the failure of the new, and has nothing to offset against the note which is its only remaining obligation. If, on the other hand, the depositors of the old bank have not released it from liability for their deposits and it is still obligated to pay them, the failure of the new bank has resulted in loss to the old which it can assert as a defense against the note. See Treadwell v. Fagan (C. C. A. 5th) 68 F.(2d) 550. In the latter alternative, however, the liability of the stockholders of the old bank should be enforced for the benefit of its depositors, who should be made parties to the suit and allowed to prove their claims, and the county would still have sufficient interest in the suit to justify its presence in court by reason, of the sinking fund which it had on deposit with the old bank.
As equities which we cannot foresee may arise upon the further hearing of the case, we shall not attempt to direct the action of the court below except to order that the decree appealed from be set aside, and further, proceedings be had in conformity with this opinion, with right to the parties to file additional pleadings and present further evidence. In ease No. 3595, therefore, the decree will be reversed and the cause remanded for further proceedings. In case No. 3580, the appeal will be dismissed.
No. 3580, appeal dismissed.
No. 3595, reversed and remanded.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_jurisdiction
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
SUNFLOWER ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant, v. The KANSAS POWER AND LIGHT COMPANY, Central Kansas Power Company, Central Telephone & Utilities Corporation, and United Telecommunications, Inc., Defendants-Appellees.
No. 78-1188.
United States Court of Appeals, Tenth Circuit.
Argued April 17, 1979.
Decided June 4, 1979.
On Motion for Rehearing Aug. 6, 1979.
Wallace Edward Brand of Pearce & Brand, Washington, D. C. (Edward E. Hall of Pearce & Brand, Washington, D. C., on the brief), for plaintiff-appellant.
Lawrence A. Rouse of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo. (Dick H. Woods of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., and Cosgrove, Webb & Oman, Topeka, Kan., on the brief), for defendant-appellee The Kansas Power and Light Co.
Richard J. Rappaport of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill. (Keith P. Schoeneberger of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., of counsel and on the brief, Weeks, Thomas, Lysaught, Bingham & Mustain, Kansas City, Kan., on the brief), for defendant-appellee Central Tel. & Utilities Corp.
James M. Caplinger, Topeka, Kan., on the brief, for defendant-appellees United Telecommunications, Inc. and Central Kansas Power Co.
Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The basic question in this case is whether the trial court was correct in its ruling that the primary jurisdiction of a Sherman Act case which was here presented was with the Federal Power Commission or whether or not the trial court should have proceeded to try the case. This cause has been languishing for a good many years and so we hasten to reach a decision in an effort to accelerate its progress.
The original complaint was filed on March 28, 1975, by the Sunflower Electric Cooperative, a Kansas cooperative corporation, which supplies low cost and reliable electricity, so it says, to its members. It further states that the defendant has combined and conspired to restrain and monopolize trade in the supply of firm bulk power in the power exchange market, such acts being in violation of both Section 1 and Section 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. It is further alleged that a proposed merger or acquisition of one of the parties defendant by another of the defendants constituted a violation of Section 1 of the Sherman Act.
The named defendants are Kansas Power and Light Company (KP&L), the Central Kansas Power Company (CKP), United Telecommunications, Inc. (United Tel-the corporate parent of CKP), and the Central Telephone Utilities Corporation (CTU). Plaintiff-appellant Sunflower is here referred to as Sunflower and the defendantsappellees are referred to by their respective titles or as the defendants. The proposed acquisition, which is alleged to be a violation of the antitrust laws, was of CKP by KP&L.
The judgment of the trial court was entered July 28, 1977. The court held that pursuant to the doctrine of primary jurisdiction, the antitrust action should be stayed pending the disposition of the merger or acquisition and other related issues in proceedings before the Federal Power Commission (FPC), now the Federal Energy Regulatory Commission, pursuant to the provisions of the Federal Power Act.
It was from this basic order that Sunflower appealed. The district court found that Sunflower was engaged in selling wholesale electric energy to consumer members in northwest and southwest Kansas. As a result of circumstances not here present, in early 1970, Sunflower was in the position of having to purchase increasingly expensive oil in order to meet its requirements, or to purchase, from CTU, coordinating power in the power exchange market. Sunflower viewed these two sources as being unreliable and economically questionable and so brought suit alleging that the defendants had restricted the options available to it and in so doing had acted contrary to the antitrust laws.
Much of the trial court’s opinion was concerned with the allegations as to Clayton Act violations and the possible significance of the fact that under the Federal Power Act the FPC is given authority to review mergers and acquisitions. Full reliance was placed on the case of Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1972), and the trial judge concluded that the action, strictly upon that basis, was to be stayed.
In his memorandum order, the judge characterized the Sunflower cause by saying that while it made a claim for treble damages, which is obligatory in a federal antitrust action, that the true thrust of its prayer for relief was the demand that the court immediately undertake to resolve all of Sunflower’s energy supply problems at little or no cost to its members. The trial court was apparently influenced by the fact that he had located no other case in which a court had found, within the Sherman and Clayton Acts, power to provide protection to a wholesale customer of electrical power and wherein the power to mandate or compel a public utility to wheel power was recognized. Several other reasons were enumerated by the trial court as favoring the decision to stay the action pending review by the FPC. The judge cited Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576 (1952) and Ricci, supra, involving the doctrine of primary jurisdiction, and found that in the case at bar there were present the factors identified by the Supreme Court as compelling a stay. These factors set forth by the district court were:
1) it [would be] necessary for the court to determine whether the federal antitrust statutes were inapplicable to the subject matter of the complaint by reason of a federal regulatory scheme incompatible with the maintenance of an antitrust action; (2) some facets of the dispute between the parties were arguably within the jurisdiction of the appropriate agency; and (3) adjudication of that dispute by the agency promised to be of material aid in resolving the immunity question.
[Ricci] 409 U.S. at 302, 93 S.Ct. 573.
Sunflower Electric Cooperative v. Kansas Power & Light, et al, # 75-37-C5, slip op. at 10 (D. Kan. July 28, 1977).
The court concluded that this was a case where the experience and expertise of an administrative agency in reviewing facts of a nature not conventionally dealt with by courts of general jurisdiction would be a useful foundation in a later court action. Agency expertise is, of course, a well-accepted and valid justification for staying an action in many situations. Moreover, the trial judge reasoned that the questions and issues raised were in an area where uniformity of approach was desirable, and that isolated or “sporadic action by federal courts,” would be counterproductive.
The trial judge was not convinced that the fact that the FPC had no authority over antitrust claims in that it had no power to afford the relief sought, that is, the compelling of wheeling, the granting of treble damages, etc., required the total bypass of the administrative route. Instead, the trial court felt that this should be first heard and determined in administrative proceedings, relying upon Gulf States Utilities Company v. Federal Power Commission, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973). The further conclusion was that it was quite possible that the Federal Power Act removed some conduct from the antitrust laws; “[i]t is . arguable that at least with reference to some of the matters alleged in the plaintiff’s complaint, the remedy afforded by the [Federal Power] Act— if any — supersedes that provided by the antitrust laws.” In sum, the judge felt that this was a case which presented opportunities for taking advantage of the agency’s expertise, saying that if the matter was not first referred to the FPC it was possible that the court would be unable to avail itself of that expertise at a later date. The court regarded as persuasive the fact that the FPC was not required to suspend its merger proceeding pending the outcome of the challenge to the merger in federal court, and that if one or the other of the proceedings was not stayed, that there was a risk of conflicting results.
The plaintiff relied heavily on Otter Tail Power Company v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973), a 1973 decision which allegedly supported the plaintiff’s position. However, notwithstanding that Otter Tail is similar on its facts, in respect to same issues, to the present case, the trial court regarded the earlier Ricci decision of the Supreme Court to be more relevant to the issues. We must disagree with the viewpoint which the trial court took.
I.
DOES THE DOCTRINE OF PRIMARY JURISDICTION APPLY?
The named doctrine provides that where the law vests in an administrative agency the power to decide a controversy or treat an issue, the courts will refrain from entertaining the case until the agency has fulfilled its statutory obligation. See California v. Federal Power Commission, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962). When a federal court is presented with a case within its jurisdiction but which involves an issue within the competence of an administrative body in an independent proceeding, comity and avoidance of conflict as well as perhaps other considerations suggest propriety in referring the issue. See Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 254, 71 S.Ct. 692, 95 L.Ed. 912 (1951).
This action is justified on the basis that it achieves uniformity and consistency in the regulation of those businesses and activities with which Congress is concerned, and that the flexibility of the agency as compared to the rigidity of the court argues in favor of allowing the agency to proceed. The expertise of the agency is another argument which favors this. See Far East Conference v. United States, supra.
It is different from exhaustion. See United States v. Western Pacific R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). There, in Western Pacific, the court explained that the exhaustion doctrine requires that judicial action on a claim be withheld when the law provides that such claim may be treated first by the proper agency. In other words, the administrative process must be exhausted before the parties go to court. On the other hand, primary jurisdiction is invoked in situations where the courts have jurisdiction over the claim from the very outset, but it is likely that the case will require resolution of issues which, under a regulatory scheme, have been placed in the hands of an administrative body. See 352 U.S. at 64, 77 S.Ct. 161. Where this is the situation, the court may suspend the action and refer the issues which lie within the ambit of the agency’s responsibility to it in order to obtain its views and so as to reach a more informed and better decision.
The question then, boils down to whether the doctrine should be applied in the present situation. Are the issues such to promote the interest of “uniform and expert administration of the regulatory scheme”? See United States v. Western Pacific R. Co., 352 U.S. at 65, 77 S.Ct. at 166. Also to be considered are the countervailing policy considerations which urge disposition of the issues in a federal court of general jurisdiction.
The trial court, however, found the doctrines of primary jurisdiction and exhaustion required the action be stayed. In so doing it relied on Ricci v. Chicago Mercantile Exchange, supra, and distinguished Otter Tail Power Company v. United States, supra. And so, therefore, this court must determine which of these decisions govern here.
In Otter Tail, the United States brought a civil antitrust action against the power company. The district court held that the Otter Tail Power Company had attempted and had indeed maintained a monopoly over the retail distribution of electric power in the region it served, and had attempted, in some cases successfully, to prevent local communities from adopting a municipal distribution system upon the expiration of Otter Tail’s distribution agreement with those communities. The court found that Otter Tail had, in order to effect its scheme, refused to sell wholesale power to communities to which it had been providing retail power and, particularly, had refused to wheel power to systems operated by the local communities, and had started legal actions with the object of further delaying establishment and impeding growth of the municipal distribution systems. Furthermore, it had managed to deny access to other suppliers to the communities involved as such access would have to have been obtained through Otter Tail’s facilities.
Otter Tail contended, as have the defendants here, that the issues involved would be best handled by the FPC. The Supreme Court, however, disagreed. It is to be noted that in Otter Tail the government, not a private entity, brought the complaint, and also, there was nothing like the proposed merger found in the instant case to complicate matters.
The remedies sought in Otter Tail included requests to compel the power company to wheel power and provide power interconnects. The company urged strenuously that under § 202(b) of the Federal Power Act, 16 U.S.C. § 824a(b), the FPC had authority to compel involuntary interconnections of power and thus the trial court should defer action. However, the majority (this was a 4-3 decision) was not persuaded. It felt that the goal of § 202 was to foment voluntary power interconnects, and that
[o]nly if a power company refuses to interconnect voluntarily may the Federal Power Commission, subject to limitations unrelated to antitrust considerations, order the interconnection. The standard which governs its decision is whether such action is “necessary or appropriate in the public interest.” Although antitrust considerations may be relevant, they are not determinative.
410 U.S. at 373, 93 S.Ct. at 1028.
The opinion reviewed the legislative history of the Federal Power Act and discovered no legislative intent to immunize or protect power utilities from the constraints of antitrust laws. Rather, it was the Court’s opinion that Congress chose, rather than a comprehensive program seeking to regulate the distribution of power in the interstate market, to have the market operate on a voluntary commercial basis. The Court said:
these relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws.
410 U.S. at 374, 93 S.Ct. at 1028.
The opinion, therefore, found nothing to indicate that there was a congressional intent, in giving the FPC limited authority in the power interconnect area, to immunize utilities from antitrust laws, at least in the area of refusing to deal with a municipal corporation. Furthermore, while there was limited authority vested in the Commission in the power interconnect area, there was no correlative authority to order wheeling vested in the Commission and, therefore, an order to wheel power, issued by the district court, in no way infringed on the authority of the FPC.
The case of Ricci v. Chicago Mercantile Exchange, supra, arose as a result of the suspension of Ricci by the Mercantile Exchange. He was a member and they transferred his membership, without notice, to another, Siegel Trading Company; a third party transferred his membership to another without giving him any notice. The complaint alleged that Ricci had purchased a membership in the Exchange in 1967, using funds borrowed from the Trading Company, and that in February 1969, the Exchange, at the instance of the Trading Company, transferred the membership to Siegel Trading Company, giving Ricci no hearing and without furnishing him with notice. It used a blank transfer authorization that had previously been invoked. Allegedly, this course of conduct violated both the rules of the Exchange and the Commodity Exchange Act and was pursuant to an unlawful conspiracy aimed at restraining the conduct of Ricci’s business.
The Court of Appeals for the Seventh Circuit ruled that Ricci had an administrative remedy available to him before the Commission, which would involve alleging and proving that the membership was illegally forfeited, and that this was a more direct remedy than was the action in court under the antitrust laws. The Supreme Court affirmed this ruling of the Seventh Circuit. The basic judgment of the Supreme Court was that the remedy before the Commission was a more direct and more pinpoint remedy than that which was available in court. The Supreme Court said:
The adjudication of the Commission, if it is forthcoming, will be subject to judicial review and would obviate any necessity for the antitrust court to relitigate the issues actually disposed of by the agency decision. Cf. United States v. Philadelphia National Bank, 374 U.S. [321] at 353-354 [83 S.Ct. 1715, 10 L.Ed.2d 915]; Federal Maritime Board v. Isbrandtsen Co., supra [356 U.S. 481] at 498-499 [78 S.Ct. 851, 2 L.Ed.2d 926], Of course, the question of immunity, as such, will not be before the agency; but if Ricci’s complaint is sustained, the immunity issue will dissolve, whereas if it is rejected and the conduct of the Exchange warranted by a valid membership rule, the court will be in a much better position to determine whether the antitrust action should go forward. Affording the opportunity for administrative action will “prepare the way, if the litigation should take its ultimate course, for a more informed and precise determination by the Court for the scope and meaning of the statute as applied to [these] particular circumstances.”
409 U.S. at 306, 93 S.Ct. at 582.
Recently the Seventh Circuit had a case before it, Mishawaka v. Indiana & Michigan Electric Co., 560 F.2d 1314 (7th Cir. 1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978). There the court found that the FPC had no primary jurisdiction over an alleged “price squeeze” where the defendant raised its wholesale price of power sold to competitors while retaining its own low retail price and thus it reduced the ability of its competitors to compete for some retail customers.
The Seventh Circuit’s interpretation of the Supreme Court’s decision in Otter Tail was that it allowed the district court to treat an antitrust claim and not stay the action “where there was only a potential conflict between the federal judicial decree and a future order of the Federal Power Commission.” 560 F.2d at 1322. (Similarly, in the case at bar, once the merger issue is out of the way, the conflict is either potential or nonexistant. Under the terms of the Act as it existed in 1975, the FPC had no authority to compel wheeling of power or to order the coordinated development of power, and this is conceded by the defendants in the briefs.) The court read Otter Tail as voiding, at least as regarding the primary jurisdiction of the FPC, the Ricci proviso that where some of the issues involved are subject to agency jurisdiction the antitrust court should defer to that agency. Instead, the Seventh Circuit chose to rely on the rule stated in Otter Tail that there exists only potential conflict between federal court action and future action by the FPC, the court need not stay its hand.
There are other recent cases which give support to the Otter Tail decision. One of these is Cantor v. Detroit Edison Co., 428 U.S. 579, 596 n. 35, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). In that case Mr. Justice Stevens noted that
Since our decision in Otter Tail Power Co. v. United States, supra, there can be no doubt about the proposition that federal antitrust laws are applicable to electrical utilities. Although there was dissent from the particular application of the statute in that case, there was no dissent from the basic proposition that such utilities must obey the federal antitrust laws.
428 U.S. at 596 n. 35, 96 S.Ct. at 3120 n. 35.
II.
We now come to a consideration of the FPC’s jurisdiction with respect to interstate transmission of electricity. We note at the outset that the merger proposal is not before this court, and at the same time the record reveals that it has been withdrawn, and so it is not part of this case. When the cause was before the district court, the merger question was present in the case and this gave more substance to a contention that the FPC had some jurisdiction in the premises. We, however, must proceed upon the basis of the facts before us and the act as it existed in 1975 when these proceedings were at the trial level. Unquestionably, the amendments which changed the character of the Commission cannot be effective because they have not been given any retroactive scope.
The Federal Power Commission is authorized to oversee transmission of electric power and the sale of wholesale electric power in interstate commerce. 16 U.S.C. § 824(b). The Federal Power Act includes provisions designed to encourage “voluntary interconnection and coordination of facilities for the generation, transmission, and sale of electric energy, . . . ” 16 U.S.C. § 824a(a); Otter Tail Power Company v. United States, 410 U.S. at 373. The Commission has the power under 16 U.S.C. § 824a(b), upon application, notice, and a hearing, to order power interconnections where the Commission finds such action “necessary or appropriate in the public interest . . . .” This last clause has been interpreted by the Supreme Court in Otter Tail as a grant of limited authority and not a clause which was “intended to be a substitute for, or to immunize [a power company] from, antitrust regulation for refusing to deal with municipal corporations.” 410 U.S. at 374-75, 93 S.Ct. at 1028. On the other hand, the Commission’s primary responsibility lies in the area of rates and charges. All rates and charges for the sale of such energy as is subject to the jurisdiction of the FPC are controlled by the Commission. The Commission may suspend rate changes, determine the just and reasonable rate that is to be charged and fix or establish such a rate. 16 U.S.C. § 824d(e), § 824e(a).
This latter provision requires the Commission to act where it finds a “rate, charge, or classification [to be] unjust, unreasonable, unduly discriminatory or preferential.” It is contended that this latter provision authorizes the Commission to assume jurisdiction in the instant case. The argument is that the essence of much of Sunflower’s complaint “consists of allegations that the defendants have refused to deal with Sunflower, except on unfair and discriminatory terms and have given undue preference and advantages to other electrical utilities.” However, none of the allegations in the complaint deal with discriminatory rate practices.
In Conway Corporation v. Federal Power Commission, 167 U.S.App.D.C. 43, 510 F.2d 1264 (1975), aff’d, 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed.2d 626 (1976), it was noted that the provisions of the Act, §§ 824d and 824e, “expressly require the Commission to weigh discriminatory effects in rate proceedings.” 510 F.2d at 1270 (emphasis added.) There the court held that the FPC could consider discriminatory practices involving retail rates, over which technically it had no jurisdiction, in determining claims of discrimination grounded in the anticompetitive effects caused by differences between the retail and wholesale rates charged by the utility.
Although Conway approved FPC consideration of practices with respect to retail rates, it does not approve the exercise by FPC of authority in areas such as the wheeling of electrical power nor does it authorize the ordering of coordinated development or the award of attorneys’ fees. We view Otter Tail Power Company, supra, as confirming the conclusion that such relief cannot, under the old law at least, be granted by the FPC. See also Richmond Power & Light v. Federal Energy Regulatory Commission, supra, which recognizes that the FPC has no explicit duty to remedy alleged discriminatory practices which do not involve rates and charges. Id. at 623 n. 53. See also National Association for the Advancement of Colored People v. Federal Power Commission, 425 U.S. 662, 96 S.Ct. 1806, 48 U.Ed.2d 284 (1976).
Looking then, at the extent of authority of the Commission in the light of Otter Tail Power Company and Richmond Power and Light, it is clear that the FPC lacked authority to deal with the problems which were present in the district court case. Looking back, in the light of present knowledge, the referral to the Commission was a futile move. We recognize that at the time the merger issue was present and so it did not look so futile.
Accordingly, we are constrained to conclude that the Federal Power Act, as it existed when this claim accrued, failed to provide a feasible administrative remedy which would justify the referral here, for as we view it it would have been merely a postponement of the day for coming to grips with the monopolizing issue.
We agree, then, with Sunflower’s position that its remedy, if any, was pursuant to Sections 1 and 2 of the Sherman Act.
The judgment is reversed and the cause is remanded with directions to the trial court to proceed to the trial of the case on the merits.
. In the recent legislation in which the Department of Energy was created, 42 U.S.C.A. § 7101, et seq., the Congress created the Federal Energy Regulatory Commission, 42 U.S.C.A. § 7171, and transferred thereto the powers and duties of the Federal Power Commission. 42 U.S.C.A. § 7172. However, the law was to be effective only on a date 120 days after the new Secretary of Energy assumed office and as the new law was passed on August 4, 1977, with no provisions for retroactivity, the transfer of power has no effect on this case (in fact, by Executive Order # 12009, 42 Fed. Reg. 46267 (September 13, 1977), the President established the first of October as the effective date of the Act.)
In the new Public Utility Regulatory Policies Act of 1978, P.L. 95-617, the Federal Power Act was amended to grant to the FERC authority to order wheeling of power or power interconnections, upon application, where the Commission finds such an order to be in the public interest. 16 U.S.C.A. §§ 824i and 824j. Located in the conference report to the new law is a statement which sets out the understanding of present law held by the legislators, and how they intended the new law to be applied in the antitrust area:
The conferees intend to preserve the jurisdiction of the Federal and State courts in actions under antitrust laws, whether or not the parties to such actions could have sought remedies under this legislation.
Specifically with regard to certain authorities to order interconnections and wheeling under title II, it is not intended that the courts defer actions arising under the antitrust laws pending a resolution of such matters by the Federal Energy Regulatory Commission. The conferees specifically intended to preserve jurisdiction of Federal and State courts to resolve, independent of the Commission, such actions, including for example, cases where a refusal to wheel electric energy is alleged to be in violation of such laws. The court should be able to act whether or not action by the Commission under the provisions In title II can be requested or would be justified. In this way, the courts have jurisdiction to proceed with antitrust cases without deferring to the Commission for the exercise of primary jurisdiction. H.R.Conf.Rep. # 95-1750, 95th Cong. 2d Sess., 68 reprinted in [1978] U.S.Code Cong. & Admin.News, pp. 7659, 7802. (Emphasis added.)
It would seem that at least the authors of the conference report understood current case law to permit the courts to entertain the antitrust action, when relief such as is here involved is sought, without deferring to the regulatory body. Indeed, it would appear that they wholly approved of this approach.
. Section 203(a) of the Federal Power Act, 16 U.S.C.A, § 824b(a), holds:
No public utility shall sell, lease, or otherwise dispose of the whole of its facilities subject to the jurisdiction of the Commission, or any part thereof of a value in excess of $50,000, or by any means whatsoever, directly or indirectly, merge or consolidate such facilities or any part thereof with those of any other person, or purchase, acquire, or take any security of any other public utility, without first having secured an order of the Commission authorizing it to do so. * * *
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_declarationuncon
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL. v. DOE
No. 95-1694.
Argued December 2, 1996
Decided February 19, 1997
Charles A. Miller argued the cause for petitioners. With him on the briefs were Robert A. Long, Jr., John F. Duffy, James E. Holst, and Patrick J. O’Hern.
Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger,. Deputy Solicitor General Bender, and Mark B. Stern.
Richard Gayer, by appointment of the Court, 519 U. S. 804, argued the cause for respondent. With him on the brief was Madeleine Tress
Richard Ruda and James I. Crowley filed a brief for the National Conference of State Legislatures et al. as amid curiae urging reversal.
James K. T. Hunter, pro se, filed a brief as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
The narrow question presented by this case is whether the fact that the Federal Government has agreed to indemnify a state instrumentality against the costs of litigation, including adverse judgments, divests the state agency of Eleventh Amendment immunity. We hold that it does not.
I — I
Respondent, a citizen of New York, brought suit against the Regents of the University of California and several individual defendants in the United States District Court for the Northern District of California. Although he alleged other claims, we are concerned only with respondent’s breach-of-contract claim against the University. Doe contends that the University agreed to employ him as a mathematical physicist at the Lawrence Livermore National Laboratory, which the University operates pursuant to a contract with the Federal Government. According to his complaint, the University wrongfully refused to perform its agreement with Doe because it determined that he could not obtain the required security clearance from the Department of Energy (Department). Relying on Ninth Circuit cases holding that the University is “an arm of the state,” the District Court concluded that the Eleventh Amendment barred respondent from maintaining his breach-of-contract action in federal court.
The Court of Appeals for the Ninth Circuit reversed. Assuming that in some, but not all, of its functions the University is entitled to Eleventh Amendment immunity, the court addressed the narrow question whether it is an arm of the State when “acting in a managerial capacity” for the Liver-more Laboratory. Doe v. Lawrence Livermore National Laboratory, 65 F. 3d 771, 774 (1995). Although the majority applied “a five-factor analysis,” it emphasized that “liability for money judgment is the single most important factor in determining whether an entity is an arm of the state.” Ibid. The majority opinion gave decisive weight to the terms of the University’s agreement with the Department, which made it “clear that the Department, and not the State of California, is liable for any judgment rendered against the University in its performance of the Contract.” Ibid.
The dissenting judge did not take issue with the majority’s emphasis on the importance of the defendant’s liability for a money judgment, but he reasoned that the proper analysis should focus on the primary legal liability rather than the ultimate economic impact of the judgment. Noting that it was undisputed that a judgment against the University “is a legal obligation of the State of California,” id., at 777, he discounted the significance of the indemnitor’s secondary, or indirect, liability. For his conclusion, he relied on Ninth Circuit precedent suggesting that a State may not confer Eleventh Amendment immunity on an entity or individual who would otherwise not enjoy that immunity simply by volunteering to satisfy judgments against the entity, Durning v. Citibank, N. A., 950 F. 2d 1419, 1425, n. 3 (1991), or by passing a statute indemnifying individual officers from liability, Blaylock v. Schwinden, 862 F. 2d 1352, 1353-1354 (1988). “The question is not who pays in the end; it is who is legally obligated to pay the judgment that is being sought.” 65 F. 3d, at 777-778.
Because other Courts of Appeals agree with the dissent’s focus on legal rather than financial liability, we granted cer-tiorari to resolve the conflict. 518 U. S. 1004 (1996).
t — I HH
The Eleventh Amendment provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
It has long been settled that the reference to actions “against one of the United States” encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instru-mentalities. Poindexter v. Greenhow, 114 U. S. 270, 287 (1885); In re Ayers, 123 U. S. 443, 487 (1887); Smith v. Reeves, 178 U. S. 436, 438-439 (1900); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945). Thus, “when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Id., at 464.
When deciding whether a state instrumentality may invoke the State’s immunity, our eases have inquired into the relationship between the State and the entity in question. In making this inquiry, we have sometimes examined “the essential nature and effect of the proceeding,” ibid.; see also Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573, 576 (1946), and sometimes focused on the “nature of the entity created by state law” to determine whether it should “be treated as an arm of the State,” Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977).
Of course, the question whether a money judgment against a state instrumentality or official would be enforceable against the State is of considerable importance to any evaluation of the relationship between the State and the entity or individual being sued. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 45-51 (1994); Edelman v. Jordan, 415 U. S. 651, 663 (1974); Ford Motor, 323 U. S., at 464. In Hess, we evaluated the relationship between ah entity created by a bistate compact and the States that had joined to create that entity in order to determine whether that entity could properly be denominated as an “arm” of either of its founding States for the purposes of the Eleventh Amendment. In addition to considering the position of the bistate entity as a unique creature within the federal system, 513 U. S., at 39-42, and the nature of the claims at issue in the underlying proceeding, id., at 42, we focused particular attention on the fact that “both legally and practically” neither of the relevant States would have been obligated to pay a judgment obtained against the bistate entity, id., at 51-52.
Respondent seeks to detach the importance of a State’s legal liability for judgments against a state agency from its moorings as an indicator of the relationship between the State and its creation and to convert the inquiry into a formalistic question of ultimate financial liability. But none of the reasoning in our opinions lends support to the notion that the presence or absence of a third party’s undertaking to indemnify the agency should determine whether it is the kind of entity that should be treated as an arm of the State.
Just as with the arm-of-the-state inquiry, we agree with the dissenting judge in the Court of Appeals that with respect to the underlying Eleventh Amendment question, it is the entity’s potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant. Surely, if the sovereign State of California should buy insurance to protect itself against potential tort liability to pedestrians stumbling on the steps of the State Capitol, it would not cease to be “one of the United States.”
Accordingly, we reject respondent’s principal contention— that the Eleventh Amendment does not apply to this litigation because any award of damages would be paid by the Department of Energy, and therefore have no impact upon the treasury of the State of California. The Eleventh Amendment protects the State from the risk of adverse judgments even though the State may be indemnified by a third party.
Ill
As an alternative ground for affirmance, respondent invites us to reexamine the validity of the Ninth Circuit cases holding that the University is an arm of the State. He argues that we should look beyond the potential impact of an adverse judgment on the state treasury, and examine the extent to which the elected state government exercises “real, immediate control and oversight” over the University, see id., at 62 (O’Connor, J., dissenting), as well as the character of the function that gave rise to the litigation. Because the question we granted certiorari to address does not encompass this argument, we decline to address it.
The judgment of the Court of Appeals is reversed.
It is so ordered.
See App. to Pet. for Cert. A-22, A-24, and A-28 (citing Thompson v. City of Los Angeles, 885 F. 2d 1439, 1442-1443 (1989), and Jackson v. Hayakawa, 682 F. 2d 1344, 1350 (1982)).
The court relied on one case holding that Congress had abrogated the University’s immunity from suit for patent infringement, Genentech, Inc. v. Eli Lilly & Co., 998 F. 2d 931, 940-941 (CA Fed. 1993), cert. denied, 510 U. S. 1140 (1994), and another holding that the University had waived its immunity in some eases, In re Holoholo, 512 F. Supp. 889, 901-902 (Haw. 1981), for its conclusion that the “University is an enormous entity which functions in various capacities and which is not entitled to Eleventh Amendment immunity for all of its functions.” Doe v. Lawrence Livermore National Laboratory, 65 F. 3d 771, 775 (1995). We have no occasion to consider questions of waiver or abrogation of immunity in this ease. Nor is it necessary to decide whether there may be some state instrumen-talities that qualify as “arms of the State” for some purposes but not others.
The five factors considered by the court in evaluating whether the University is an arm of the State were: “[1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has power to take property in its own name or only the name of the state, and [5] the corporate status of the entity.” Id., at 774.
See Cronen v. Texas Dept. of Human Services, 977 F. 2d 934, 938 (CA5 1992) (“[T]he source of the damages is irrelevant when the suit is against the state itself or a state agency”); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F. 2d 351, 357 (CA7 1983) (“No authority supports Cannon’s argument that [the Eleventh Amendment] analysis is altered by the possibility that a damage award would be met through insurance proceeds or from federal funds”).
Ultimately, of course, the question whether a particular state agency has the same kind of independent status as a county or is instead an arm of the State, and therefore “one of the United States” within the meaning of the Eleventh Amendment, is a question of federal law. But that federal question can be answered only after considering the provisions of state law that define the agency’s character.
We relied in Mt. Healthy on our earlier decision that a California county is not an “arm of the State” and therefore may be considered a “citizen” of California for the purpose of determining the federal court’s diversity jurisdiction over a state-law claim. Moor v. County of Alameda, 411 U. S. 693, 717-721 (1973). In Moor we made a “detailed examination of the relevant provisions of California law” defining counties, noting that the county “is liable for all judgments against it and is authorized to levy taxes to pay such judgments,” that it is “empowered to issue general obligation bonds,” and that it has other characteristics that provide “persuasive indicia of the independent status occupied by California counties relative to the State of California.” Id., at 719-721.
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer:
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songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
BROWN SHOE COMPANY, Inc., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
No. 17336.
United States Court of Appeals Eighth Circuit.
Dec. 8, 1964.
Robert H. McRoberts, Gaylord C. Burke, and Edwin S. Taylor, of Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for petitioner.
Thomas F. Howder and Gerald J. Thain, Attys., James Mcl. Henderson, Gen. Counsel, and J. B. Truly, Asst. Gen. Counsel, Federal Trade Commission, Washington, D. C., for respondent.
Before VOGEL, MATTHES and RIDGE, Circuit Judges.
VOGEL, Circuit Judge.
This case arises from a petition to review an order of the Federal Trade Commission directed against Brown Shoe Company, Inc. The case was originally brought by the Commission under § 5 of the Federal Trade Commission Act which provides:
“§ 5(a) (1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.” 66 Stat. 632 (1952), 15 U.S.C.A. § 45 (a) (1) (1958).
The Commission’s complaint, issued October 13, 1959, alleged that Brown Shoe Company, Inc., a manufacturer and distributor of shoes, violated § 5 through the operation of its franchise stores program and by fixing the retail prices at which its products were sold by dealers.
Count 1 alleged that Brown “entered into contracts or franchises with a substantial number of its independent retail shoe store operator customers which required said customers to restrict their purchases of shoes for resale to the Brown lines and which prohibit them from purchasing, stocking or reselling shoes manufactured by competitors of Brown”. It charged that dealers having this relationship with Brown are termed “Brown Franchise Stores” and are afforded special treatment and given certain benefits not granted other customers.
Among the benefits or services listed in the Commission’s complaint were “free signs, business forms and accounting assistance participation in lower cost group fire, public liability, robbery, and life insurance policies; and special, below list prices on U. S. Rubber Company canvas and waterproof footwear”. In return for these services, the complaint charged that franchise dealers must “concentrate” their purchases of shoes upon “the grades and price lines” of shoes manufactured and sold by Brown. It further charged that such dealers must “refrain from stocking and selling shoes of competitors” and that dealers who violate their franchise agreement by doing so are dropped from the program and are deprived of the benefits available thereunder.
The Commission alleged that the “purpose, intent or effect” of such practices on the part of Brown was “substantially to lessen, hinder, restrain and suppress competition” in the distribution of shoes in interstate commerce and in general to “foreclose” or “exclude” competitors from a “substantial share” of the retail dealer market, thereby further enhancing the already powerful competitive position of Brown in the shoe industry.
Count 2 of the Commission’s complaint charged petitioner with resale price fixing in forcing or requiring its retail dealers to “agree to maintain arbitrary, noncompetitive resale consumer prices fixed and promulgated by Brown”.
In connection with Count 2, the complaint alleged that petitioner “regularly publishes and distributes” to its customers “price lists or catalog lists” containing “the consumer prices to be observed” by them and that petitioner “frequently publishes” these prices in “full page advertisements in magazines having national circulation”.
The complaint charged that through its representatives and officials Brown “maintains continuous pressure” upon its dealers “to insure that they do not depart from or sell below the minimum retail prices” established. It charged that non-adherents to these prices “are immediately contacted by Brown representatives” to insure compliance by “persuasion” if possible but “if that fails, to threaten and inform” such dealers that petitioner “will discontinue doing business” with them.
The acts and practices of petitioner set forth in both counts of the complaint were alleged to constitute unfair methods of competition and unfair acts and practices in commerce within the intent and meaning of § 5 of the Federal Trade Commission Act.
Brown, through its answer, generally denied the charges in the complaint. With reference to Count 1, however, Brown admitted entering into “contracts or franchises” with approximately 259 retail dealers. In addition, it declared that there were approximately 423 dealers operating on a “Brown Franchise Program”' who had not executed such written agreements.
The franchise agreement in question admittedly contained a provision stating that in return for the services and benefits described, the franchise dealers must “concentrate” their business upon products manufactured by Brown. Brown admitted that the operators of such Brown franchise stores “in individually varying degrees” accepted benefits and performed the obligations contained in such franchise agreements implicit in such program. It further admitted that in general the enumerated services and benefits are not available to those dealers “who are dropped or voluntarily withdraw” from the program.
In answer to Count 2, petitioner admitted only that it “regularly distributes to its retail shoe customers price lists or catalog sheets, certain of which contain suggested retail selling prices” and that “on occasions it publishes suggested retail selling prices in full page advertisements in magazines having national circulation”.
Following extensive hearings in St. Louis, Missouri; Milwaukee, Wisconsin; Dallas, Texas; Washington, D. C.; Los Angeles and San Francisco, California; and Portland, Oregon, the Hearing Examiner issued an initial decision in which he found that the charges set forth in both counts of the complaint were sustained by the evidence, and entered an order requiring Brown to cease and desist from these practices. Brown took exception to the Examiner’s findings and petitioned the Commission for a review. Its petition was granted. After hearing the matter on briefs and oral arguments, the Commission modified a portion of the Examiner’s decision to conform to its own views. As thus modified and as supplemented by its own opinion, the initial decision of the Hearing Examiner was adopted.
In modifying the initial decision, the Commission deleted therefrom the Examiner’s findings as to the substantial effect of the Brown franchise program on competition and substituted therefor its own findings. It held that it was not necessary to examine the probable effect of petitioner’s program upon competition in order to find that the program was an unfair trade practice violative of § 5 of the Federal Trade Commission Act, but that in any event, on the authority of Brown Shoe Co., Inc. v. United States, 1962, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510, the prospective competitive impact of the program was such as to render it unlawful. The Commission stated:
“We have found that Brown’s operation of the franchise plan constitutes an unfair trade practice vi-olative of Section 5 of the Federal Trade Commission Act. We conclude, therefore, that Count 1 of the complaint has been sustained. Moreover, an examination of the market facts of the shoe industry, as developed in this record in the light of the Brown Shoe decision, persuades us that the prospective competitive impact of the franchise program is such that the standards of illegality under Section 3 and Section 7 of the Clayton Act, as amended, have been met.”
On May 1, 1963, Brown filed its petition to review the order of the Commission on the grounds that such order and the findings and opinion upon which it was based are arbitrary and capricious, not supported by any substantial evidence, not in accordance with law, and lacking in due process. Petitioner has asked to have the order set aside and the complaint dismissed. The findings of the Commission and the Examiner may be summarized as follows:
Petitioner, Brown Shoe Company, Inc., is a New York corporation with its office and principal place of business in St. Louis County, Missouri. It is primarily engaged in the manufacture and distribution of nationally advertised medium-priced men’s, women’s and children’s shoes. Brown and its subsidiaries operate over 50 manufacturing, supply and service plants located throughout the United States and Canada. In 1959, this complex ranked third in shoe pairage production among the country’s approximately 900 to 1,000 shoe manufacturers. These manufacturers produced 632 million pairs of leather shoes in 1959.
The shoes manufactured by Brown and its subsidiaries are marketed on a nation-wide basis, primarily through sales at wholesale to independent retail customers, including individual shoe stores, chain stores, department stores and specialty stores. Apart from its subsidiaries, Brown was selling to approximately 6,000 retail customers at the time the complaint was issued.
Brown was second in dollar sales and third in pairage production in the shoe industry in 1958 and 1959. Although total dollar sales for the fiscal year ending October 31, 1959, were $276,549,164,® this figure included sales at wholesale and at retail by Brown and its subsidiaries and included inter-company sales as well. Brown’s sales at wholesale for the same period to its 6,000 independent retail shoe store customers were $111,-292,872. That same year (1959) the top 70 shoe manufacturing firms in the industry had total dollar sales of 1.8 billion dollars.
Brown maintains an extensive distribution system. It is organized into separate selling divisions through which it markets its various brands of shoes to its retail customers.
The division of Brown which is of paramount importance under Count 1 of the complaint is the franchise stores division. The personnel of this division include a manager, two assistants and 16 salaried “field men” who travel in assigned territories servicing various franchise accounts. The franchise division manager is responsible to the vice president in charge of sales.
Petitioner’s franchise stores program has been in operation for approximately 30 years. More recently the number of dealers under this program has increased. In November 1959 there were 682 retailers in the system. By October 1961, at the conclusion of reception of evidence herein, the number of franchisees had increased to about 767.
Petitioner makes no distinction between dealers having written franchise agreements with it and those who do not insofar as any benefits or obligations under the program are concerned. In November 1957 petitioner had written franchise agreements with approximately 260 dealers.
The Brown franchise agreement requires that the retail dealer — in return for various enumerated services and benefits — must:
“ * * * concentrate my business within the grades and price lines of shoes representing Brown Shoe Company Franchises of the Brown Division and will have no lines conflicting with Brown Division Brands of the Brown Shoe Company.”
Several valuable benefits and services are aiforded franchise holders. Specifically mentioned in the franchise agreement are: The services of field representatives ; the use of merchandising forms and records; retail sales training programs; accounting system installation; group purchasing of insurance, rubber footwear and display materials; and the opportunity to participate in national and regional sales meetings.
The Commission found that the “prime motivation” of dealers in joining and continuing on the franchise program was the above-described benefits and services available to them. The Commission recognized that not every dealer utilized each benefit, but found that “collectively” these benefits achieved the intended effect; viz., attracting selected retailers to the program and inducing them to comply with its restrictive requirements.
The Commission found that these requirements as set forth in the franchise agreement were applicable to “signer and non-signer franchise holders alike”; that this agreement not only “on its face” restricted competitive purchasing of franchise dealers, but that petitioner’s field men actively policed dealers to insure their concentration upon Brown lines and elimination of competing products; that franchise dealers who persisted in carrying conflicting lines were separated from the program.
The Commission found that although franchise dealers theoretically may be free to quit the program and return to their former status, the record on the whole showed that the relationship between Brown and its franchise dealers was “reasonably stable”. The Commission likewise took into account evidence showing that franchise dealers sometimes handled certain types and quantities of competitive shoes. It held that such evidence did not vitiate its finding that competitors were foreclosed from selling to franchise dealers in substantial amounts and that other evidence of record established this. (The record indicates that Brown franchise dealers purchase approximately 25% of their shoes from other manufacturers. A part of this 25% was made up of lines in competition with Brown.)
In sum, the Commission held that petitioner’s operation of its franchise program, which it found effectively foreclosed competitors from making substantial sales to a significant number of desirable retail outlets, constituted an unfair trade practice in violation of § 5 of the Federal Trade Commission Act. The Commission further found that petitioner’s practice of conditioning the above-described benefits of membership in the program upon adherence to the restrictive terms of the franchise agreement was “akin to the operation of tying clauses generally held as inherently anti-competitive”. In addition, the Commission, after examining the various economic factors in the shoe industry, was persuaded “ * * * that the prospective competitive impact of the franchise program is such that the standards of illegality under Section 3 and Section 7 of the Clayton Act, as amended, have been met.”
As to Count 2 of the complaint, the Commission found that petitioner entered into agreements with its retail dealers that its suggested retail prices would be followed and that it attempted to enforce and had in fact effectuated compliance with such agreements. The Commission found that Brown communicates the prices it establishes in “various ways”. Most of Brown’s selling divisions furnish their salesmen and customers with price lists containing a retail price “suggested” by petitioner. The Commission further found that advertising is another method used by petitioner to establish retail prices. On the whole, the Commission’s evidence relating to Count 2 of the complaint concerns transactions with two of Brown’s franchise stores and their pricing policies.
When this case was first instituted on October 13, 1959, it obviously was the theory of the Federal Trade Commission that Brown’s franchise stores program was an unlawful exclusive dealing arrangement violative of § 5 of the Act. It was so found by the Hearing Examiner and decided by him on that basis. The Commission struck such findings of the Examiner, stating:
“In short, from our review of the record, we find that respondent’s operation of the franchise plan, which has effectively foreclosed its competitors from selling to a significant number of retail shoe stores, constitutes an unfair trade practice under Section 5 of the Federal Trade Commission Act. Respondent’s practice of conditioning the benefits of membership in the plan to adherence to the restrictive terms of the franchise agreement for the purpose of foreclosing other manufacturers from selling to its franchisees is akin to the operation of tying clauses generally held as inherently anti-competitive.”
A proceeding under § 5 of the Federal Trade Commission Act is not one brought before the Commission by one party against another. It is instituted by the Commission itself and may be commenced whenever the Commission has reason to believe that “unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce * * * ” have been used by the party against whom it proceeds.
“ * * * The object of the Trade Commission Act was to stop in their incipiency those methods of competition which fall within the meaning of the word ‘unfair.’ ‘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.’ Federal Trade Comm. v. Sinclair Co., 261 U.S. 468, 476, 43 S.Ct. 450, 454, 67 L.Ed. 746. All three statutes [the Sherman Anti-Trust Act, the Clayton Act and the Federal Trade Commission Act] seek to protect the public from abuses arising in the course of competitive interstate and foreign trade.” Federal Trade Commission v. Raladam Co., 1931, 283 U.S. 643, 647, 51 S.Ct. 587, 589-590, 75 L.Ed. 1324.
Our primary question is whether there was adequate evidentiary basis for the Commission’s finding that the Brown franchise program was an unfair method of competition and accordingly unlawful under § 5 of the Act. The Act itself provides, 15 U.S.C.A. § 45(c) "* * * [t]he findings of the Commission as to the facts, if supported by evidence, shall be conclusive.” The use of identical language with reference to the findings of the National Labor Relations Board under the Wagner Act caused the Supreme Court to say in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 464-465, 95 L.Ed. 456:
“ * * * The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. * * *
“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.”
With reference to what is “unfair” within the purview of § 5 of the Act, the Supreme Court has said in Federal Trade Commission v. Gratz, 1920, 253 U.S. 421, 427, 40 S.Ct. 572, 575, 64 L.Ed. 993:
“The words ‘unfair method of competition’ are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as a matter of law what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly. The act was certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade.” (Emphasis supplied.)
And in Federal Trade Commission v. Ral-adam Co., supra, 1931, 283 U.S. 643, 648, 51 S.Ct. 587, 75 L.Ed. 1324:
“* * * It [the words ‘unfair methods of competition’] belongs to that class of phrases which does not admit of precise definition, but the meaning and application of which must be arrived at by what this court elsewhere has called ‘the gradual process of judicial inclusion and exclusion.’ Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. The question is one for the final determination of the courts and not of the Commission. Federal Trade Comm. v. Gratz, 253 U.S. 421, 427, 40 S.Ct. 572, 64 L.Ed. 993; Federal Trade Comm. v. Beech-Nut Co., supra, p. 453 of 257 U.S., 42 S.Ct. 150.
Our question here is whether Brown’s program could possibly be classified as an “unfair method of competition”. What Brown did in the operation of its Brown franchise stores program it had been doing for at least thirty years prior to the institution of this proceeding. Similar programs are operated by its competitors, such as International Shoe Company’s Merchants Service Plan and General Shoe Company’s General Shoes Friendly Franchise Store Plan. No court has gone so far as to hold like programs or methods of doing business unlawful under § 5 of the Federal Trade Commission Act and such programs or sales methods have never heretofore been “ * * * regarded as opposed to good morals because characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” 253 U.S. at page 427, 40 S.Ct. at page 575.
The Commission would liken Brown’s program to “tying arrangements”, relying on Northern Pacific Railway Co. v. United States, 1958, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545, and other cases. Northern Pacific is factually distinguishable. The railway company there possessed a monopoly of some 40,000,000 acres of land along the route of its railroad line from Lake Superior to Puget Sound. The company tied the sale or lease of its land to the use of its hauling services by inserting “preferential routing” clauses in its contracts for sale and leases which compelled the buyer or lessee to ship over Northern Pacific’s lines all commodities produced or manufactured on the land provided its rates were equal to those of competing carriers. The railway used its great economic power provided by the land to enforce the use of its transportation facilities.
Analyzing what Brown Shoe Company did in the instant case insofar as its Brown franchise stores program is concerned, we find:
1. It made agreements, some in writing but more orally, in which it agreed to furnish certain services to those of its customers who would “concentrate” their business on shoes manufactured by Brown.
2. The services were free of charge with the exception of the fact that Brown’s four seasonal window display props for two windows cost $500 to $600 per year and were available as well to •other independent retail shoe store customers of Brown.
3. Brown did not have a monopoly on the services which constituted the tying product nor did it have a monopoly on the tied product — shoes.
4. Brown’s competitors also furnished services in connection with the sale •of their shoes.
5. Retailers were free to abandon the.arrangement at any time they saw it to their advantage so to do.
6. Most of the services were available to customers who did not join in the Brown franchise program.
The Commission draws a parallel between the effect of the sale or lease by the railroad of its land in Northern Pacific with Brown’s giving its services to the participants of Brown’s franchise.stores program, thus forcing them to "buy Brown’s shoes.
We find no comparability between Brown’s situation and that which •existed in Northern Pacific. The Supreme Court, in holding the tying arrangement in Northern Pacific as being unlawful per se, stated at page 5 of 356 U.S.; at page 518-519 of 78 S.Ct.:
“ * * * Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129; division of markets, United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, 46 L.R.A. 122, affirmed 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators’ Guild' of America v. Federal Trade Comm., 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.
“For our purposes a tying arrangement may be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Where such conditions are successfully exacted competition on the merits with respect to the tied product is inevitably curbed. Indeed ‘tying agreements serve hardly any purpose beyond the suppression of competition.’ Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 305-306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371. They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products. For these reasons ‘tying agreements fare harshly under the laws forbidding restraints of trade.’ Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 606, 73 S.Ct. 872, 879, 97 L.Ed. 1277. They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a ‘not insubstantial’ amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. Cf. United States v. Paramount Pictures, 334 U.S. 131, 156-159, 68 S.Ct. 915, 928-929, 92 L.Ed. 1260; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236. Of course where the seller has no control or dominance over the tying product [franchise services] so that it does not represent an effectual weapon to pressure buyers into taking the tied item [s/ioes] any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.” (Emphasis supplied.)
Holding at page 7 of 356 U.S., at page 519 of 78 S.Ct., that
“ * * * un¿[iSpUted facts established beyond any genuine question that the defendant possessed substantial economic power by virtue of its extensive land holdings which it used as leverage to induce large numbers of purchasers and lessees to give it preference, to the exclusion of its competitors, in carrying goods or produce from the land transferred to them. Nor can there be any real doubt that a ‘not insubstantial’ amount of interstate commerce was and is affected by these restrictive provisions.”
the court goes on to say at page 11 of 356 U.S., at page 521 of 78 S.Ct.:
“ ■» x x fhg vjce 0f tying arrangements lies in the use of economic power in one market to restrict competition on the merits in another, regardless of the source from which the power is derived and whether the power takes the form of a monopoly or not.”
While it is clear that a “not insubstantial” amount of interstate commerce is involved here, that fact alone does not make petitioner’s program an “unfair” method of competition nor may the selling activities of petitioner be described as “deceptive acts or practices”. In Brown there was no “sale” of the tying product (franchise services); there is. no evidence that Brown’s “power or leverage” in the tying product was such as to force the purchase of the “tied products” (shoes). This case presents a situation where the seller, Brown, has no control or dominance over the tying product, seiwices; consequently, the-Brown franchise program is not an “effectual weapon” to pressure buyers into taking the tied item, shoes.
If the free services which Brown Shoe Company gives its customers who buy its shoes under its Brown franchise-program can be found to be unlawful under § 5 of the Act, then the next logical step would be to hold unlawful an agreement by a manufacturer or distributor to advertise its products in fixed areas if retailers therein would agree to-stock and to sell them.
We likewise find no comparability between the facts with which we are here-concerned and United States v. Loew’s Inc., 1962, 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11, wherein the Supreme Court adopts the trial court’s apt example of' “ x x x forcing a television station which wants ‘Gone With The Wind’ to take ‘Getting Gertie’s Garter’ as well, as taking undue advantage of the fact, that to television as well as motion picture viewers there is but one ‘Gone With The Wind.’ ” There is more than one-source from which the Brown franchise dealers can obtain the services complained about. Brown had no monopoly on services performed under the franchise-program. Other manufacturers can and do render like services.
Nor do we find United States v. Jerrold Electronics, Inc., E.D.Pa., 1960, 187 F.Supp. 545, affirmed by the Supreme-Court on the basis of Northern Pacific, International Salt, etc., at 365 U.S. 567,. 81 S.Ct. 755, 5 L.Ed.2d 806, comparable-to the facts with which we are here concerned. In Jerrold the trial court said at page 555 of 187 F.Supp.:
“ * * * Jerrold’s highly specialized head end equipment was the only equipment available which was designed to meet all of the varying problems arising at the antenna site. It was thus in great demand by system operators. This placed Jerrold in a strategic position and gave it the leverage necessary to persuade customers to agree to its service contracts. This leverage constitutes ‘economic power’ sufficient to invoke the doctrine of per se unreasonableness.”
There is no parallel between the facts present in Jerrold and those presented here. Brown’s franchise program was not the only program available to retailers. It did not give Brown the economic leverage to force the sale of its shoes. The tying product in Jerrold was highly specialized equipment which was in great demand. There is nothing specialized or unique about the services offered by Brown.
The Commission alternatively relies on Brown Shoe Co., Inc. v. United States, supra, 370 U.S. 294, 82 S.Ct. 1502, 8 L. Ed.2d 510, as persuading it “ * * * that the prospective competitive impact of the franchise program is such that the standards of illegality under Section 3 and Section 7 of the Clayton Act, as amended, have been met.” We cannot agree. That case tested the illegality of Brown’s acquisition of Kinney through a merger of the corporations and found that the vertical arrangements were illegal under §§ 3 and 7 of the Clayton Act. We find it utterly unpersuasive here. Brown has not “acquired” the retail outlets of those who join its program. The latter are free to leave it at any time. The only similarity between this case and the previous Brown Shoe Co. decision, supra, is the fact that the same corporation is involved in both disputes.
This case can be likened to Timken Roller Bearing Co. v. F. T. C., 6 Cir., 1962, 299 F.2d 839, certiorari denied, 371 U.S. 861, 83 S.Ct. 118, 9 L.Ed.2d 99. There Timken was found by the Federal Trade Commission to be in violation of § 3 of the Clayton Act, 15 U.S.C.A. § 14, by following a consistent policy of “exclusive dealing”. The court, in setting aside the Commission’s order and findings, said beginning at page 840 of 299 F.2d:
“In support of the accusations contained in the Complaint, the Commission introduced in evidence numerous documents purporting to prove Timken’s consistent policy of exclusive dealing. The majority of these documents consisted of salesmen’s reports to the Timken home office, recommending the taking on of a new account or the canceling of an old one. In our view, the Commission’s whole case rests upon the fact that, in these reports, the salesmen either recommended Timken’s taking on a new account because it would be ‘loyal’ to that company, or suggested that an old account be can-celled because the dealer was stocking the products of a Timken competitor.
***** *
“ * * * Nor can the documents alone be substantial evidence of such a policy, inasmuch as, even if these reports show that Timken cancelled dealers’ accounts because they were dealing in competitive bearings, this alone is not illegal. Perhaps the rule has best been stated for our purposes in the following language: ‘The anti-trust laws do not prohibit a manufacturer or distributor from selecting dealers who will devote their time and energies to selling the former’s products and a manufacturer is not compelled to retain dealers having divided loyalties adverse to the interests of the said manufacturer or distributor.’ Mc-Elhenny Co., Inc. v. Western Auto Supply Co., 167 F.Supp. 949, at page 954, affirmed 269 F.2d 332 (C.A.4).
“A seller has the right to select his own customers. This right is protected by the Clayton Act, itself. 15 U.S.C.A., § 13. The right has been recognized by the authorities, even where it was not expressly provided for by the statute. United States v. Colgate & Company, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992; Times-Picayune Publishing Company v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277; Naifeh v. Ronson Art Metal Works, 218 F.2d 202 (C.A.10). To uphold the order entered by the Commission in this case would be, in effect, to destroy this right.”
By passage of the Federal Trade Commission Act, particularly § 5 thereof, we do not believe that Congress meant to prohibit or limit sales programs such as Brown Shoe engaged in in this case. No monopoly of either services or shoes could be established. The custom of giving free service to those who will buy their shoes is widespread, and we cannot agree with the Commission that it is an unfair method of competition in commerce. The more and better service that Brown gave to its customers, the more it strengthened their “loyalty” to Brown Shoe. The fact that Brown franchise dealers were successful, having an average return of 16% against an average return of other independent shoe dealers in America of 11.8% certainly does not operate against the legality of the program. We hold that the Brown franchise stores program was not an unlawful tying arrangement and that there was a complete failure to prove an exclusive dealing agreement
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
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
McBRIDE v. TOLEDO TERMINAL RAILROAD CO.
No. 972.
Decided June 24, 1957.
C. Richard Orieser for petitioner.
Robert B. Gosline for respondent.
Per Curiam.
The petition for writ of certiorari is granted, the judgment of the Supreme Court of Ohio is reversed, and the cause is remanded. Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957).
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_appel1_7_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Frederick A. CARTER, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, Appellee.
No. 86-1063.
United States Court of Appeals, Third Circuit.
Submitted Pursuant To Third Circuit Rule 12(6) Aug. 28, 1986.
Decided Nov. 6, 1986.
Frederick A. Carter, pro se.
Howard R. Flaxman, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellee.
Before GIBBONS, WEIS, and MARIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The plaintiff’s complaint alleges racial discrimination in his employment termination by defendant. The suit was dismissed by the district court because plaintiff’s lawyer failed to comply with a discovery order. We agree with the district judge that counsel has “exhibited, on the record, blatant disregard for explicit orders.” We conclude, nevertheless, that sanctions should have been imposed on the attorney personally rather than denying plaintiff the opportunity to present his case on the merits.
On May 31,1985, the district court directed that plaintiff submit within twenty days his then overdue answers to the defendant’s interrogatories. The plaintiff’s lawyer did not file the answers within that time, and on June 24, 1985, defendant asked that the case be dismissed pursuant to Fed.R.Giv.P. 37. The plaintiff’s counsel did not respond to this motion; on July 18, 1985, the district judge dismissed the action.
In the interim, the plaintiff’s lawyer had failed to appear at a pretrial conference scheduled for June 13, 1985. She gave as an excuse her error in calendaring the conference for 9:30 a.m., (which was when she arrived) rather than 9:00 a.m., the time set by the court. The district court assessed counsel a sanction of $150 for her dereliction. Four days later she sent a letter to the district judge apologizing for her error and asking that the sanction be remitted.
On December 13, 1985, the plaintiff’s lawyer filed a motion under Fed.R.Civ.P. 60(b) to reinstate the complaint. Attached to the motion were answers to the interrogatories which apparently had been served on defendant. Also attached was a copy of a money order, dated November 1, 1985, in the amount of $150 made payable to the defendant’s attorney.
The district judge denied the motion on December 30, 1985, noting the five-month delay which plaintiff had explained by “vague and unsubstantiated claim that he personally had not learned of the dismissal until September, 1985.” More important, however, the court found counsel's explanation for her failure to file the discovery answers “incredible.” The judge also characterized the lawyer’s disregard of the May 31, 1985 order as “inexcusable.”
On January 9, 1986, plaintiff acting pro se filed a motion for reconsideration and for dismissal of his attorney. He alleged that in June 1985 his lawyer had misled him into believing that she had complied with the discovery request, and that he had not learned of the suit’s dismissal until September 26, 1985, when he checked the docket in the clerk’s office. He charged his counsel with being derelict in not promptly requesting reconsideration of the July 18, 1985 dismissal order. He had insisted that his counsel take steps to remedy the situation, but when she prepared a petition, it proved to be inadequate under Rule 60(b). Plaintiff described his counsel’s conduct as “abandonment,” and noted that he had paid $400 as a fee. Because of his financial straits, plaintiff said he had not been able to retain other counsel.
The district court denied the pro se motion, remarking that even after becoming aware of his lawyer’s misdeeds, plaintiff nevertheless entrusted her with filing the Rule 60(b) motion, rather than acting on his own at that time.
We understand and appreciate the district judge’s feelings when his efforts to move his docket expeditiously were frustrated by the inexcusable conduct of the lawyer. She consistently failed to meet her obligations in timely fashion with but one exception. When she was ordered to pay $150 of her own funds, she promptly wrote to the district judge asking for reconsideration. Even in that instance, she utilized a letter rather than a motion, the appropriate district court procedure.
We review the district court’s order under an abuse of discretion standard, recognizing the superior opportunity for the trial judge to assess the challenged conduct. See Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77 (3d Cir.1982).
Nevertheless, we have vacated a dismissal when a client was victimized by his attorney’s extreme negligence. In Boughner v. Secretary of Health, Education & Welfare, 572 F.2d 976 (3d Cir.1978), we directed relief under Rule 60(b) where plaintiff had suffered a default judgment because his attorney had displayed “neglect so gross that it is inexcusable.” Id. at 978. We observed that Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), upheld the dismissal of an action because of counsel’s delinquency on the reasoning that the client was liable for the acts of the lawyer whom he had retained.
In Link, the Supreme Court concluded that because the plaintiff had voluntarily chosen the attorney to represent him in the action, he could not later avoid the consequences of the acts or omissions of this “freely selected agent.” 370 U.S. at 633-34, 82 S.Ct. at 1390. Although the Court declared a party to be bound by his counsel’s acts, it noted that the aggrieved party never availed himself of a corrective remedy such as the “escape hatch provided by Rule 60(b).” Id. at 632, 82 S.Ct. at 1390. Link did not decide whether it would have been an abuse of discretion to deny a Rule 60(b) motion, since none had been filed. Id. at 635-36, 82 S.Ct. at 1391-92. Compare Link with Boughner, 572 F.2d at 978, which held that under its particular facts, appellants were not bound by their attorney’s actions for the purposes of Rule 60(b).
Although the Link principle remains valid, see National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), we have increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault. See Matter ofMacMeekin, 722 F.2d 32, 35 (3d Cir.1983).
As we said in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 869 (3d Cir.1984), “[dismissal must be a sanction of last, not first, resort.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339 (3d Cir.1982) followed the same theme. There we emphasized the failure of the district court to consider the imposition of some lesser sanction than dismissal with prejudice.
In Scarborough v. Eubanks, 747 F.2d 871 (3d Cir.1984), we discussed some of the factors a district court should weigh in considering whether to dismiss a complaint as a sanction. Although not exhaustive, the court should review (1) the extent of the party’s personal responsibility; (2) a history of dilatoriness; (3) whether the attorney’s conduct was willful and in bad faith; and (4) the meritoriousness of the claim. Id. at 875.
The record before us provides no basis for assessing the merits of the plaintiff’s claim, but the absence of his personal responsibility for his attorney’s behavior seems clear. The attorney’s conduct, although perhaps not in bad faith, was flagrant and deserving of sanctions.
The Court of Appeals for the Fourth Circuit acknowledged the serious dilemma posed by the allocation of responsibility between an attorney and her client for dilatory or contumacious conduct in Universal Film Exchanges, Inc. v. Lust, 479 F.2d 573 (4th Cir.1973): “The more Boeotian and flagrant we deem counsel's conduct in the case, the greater is his professional negligence; correspondingly, the behavior becomes less ‘excusable’ under Rule 60(b)(1). On the other hand, the more indefensible the attorney’s behavior, the greater is one’s natural sympathy for the ultimate victim— the client.” Id. at 574.
Although an action for malpractice is a possibility when a lawyer’s negligence results in dismissal, that remedy does not always prove satisfactory. It may be difficult for the client to obtain and collect a judgment for damages. Perhaps more importantly, public confidence in the administration of justice is weakened when a party is prevented from presenting his case because of the gross negligence of his lawyer who is, after all, an officer of the court. As we pointed out in Poulis, this remedy “would only multiply, rather than dispose of litigation.” 747 F.2d at 867.
We think it critical that the importance of an attorney’s professional responsibility for his client’s interest be brought home to the erring lawyer quickly and unmistakably. Allowing derelictions to await possible punishment through lengthy malpractice litigation or disciplinary board proceedings is not likely to be effective in deterring future misconduct. Consequently, we do not favor dismissal of a case when the attorney’s delinquencies — not the client’s— necessitate sanctions.
On the record before us, plaintiff acted reasonably in pressuring his lawyer to file his 60(b) motion before taking action himself. When the petition proved to be unsuccessful, he acted promptly in proceeding pro se. Not only the court, but the client, was treated unfairly by the lawyer; plaintiff should not shoulder the burden of this incompetence alone.
We conclude that the complaint in this case should be reinstated and plaintiff given a reasonable time to secure new counsel or proceed pro se.
Defendant also has suffered some financial detriment in the expenditure of fees because of the negligence of plaintiff’s counsel. That loss may be reimbursed in whole or in part by the imposition of sanctions on the plaintiff’s lawyer personally. The district court should assess these sanctions in an amount deemed to be reasonable under all the circumstances.
The order of the district court will be vacated and the case remanded with directions to reinstate the complaint and impose appropriate sanctions on the plaintiff’s counsel. Each party will bear its own costs, subject however to reallocation at the discretion of the district court in imposing sanctions on the plaintiff’s attorney.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
sc_authoritydecision
|
G
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
DYSON, CHIEF OF POLICE OF DALLAS, et al. v. STEIN
No. 41.
Argued April 30, 1970 Reargued November 16, 1970
Decided February 23, 1971
Lonny F. Zwiener, Assistant Attorney General of Texas, reargued the cause for appellants. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Pat Bailey, Executive Assistant Attorney General, Robert C. Flowers, Assistant Attorney General, Henry Wade, pro se, Wilson Johnston, N. Alex Bickley, Thomas B. Thorpe, and Preston Dial.
David R. Richards reargued the cause for appellee. With him on the briefs was Melvin L. Wulf.
Stanley Fleishman filed a brief pro se et al. as amici curiae urging affirmance.
Per Curiam.
The appellee, Stein, published a bi-weekly newspaper, the Dallas Notes. Stein was charged with two violations of Art. 527, § 1, of the Texas Penal Code, which then prohibited, among other things, the possession of obscene materials. While these two cases were pending in state courts, Stein brought the present action in a federal district court under 42 U. S. C. §§ 1983, 1985, representing himself and a class consisting of present and future employees of and contributors to his newspaper. The defendants were the district attorney of Dallas County, and the Dallas chief of police. He sought:
“[PJermanent injunctive relief against the Dallas Police Department, requiring that , . . there be no arrest of plaintiff, nor seizure of his property on grounds of obscenity without a prior judicial determination of the obscene character of the material in question; . . .
“. . . That the Court adjudge, decree and declare the rights of the parties with respect to the application of Article 527 of the Texas Penal Code;
. . That the Court grant such other and further relief as is just and equitable.”
A three-judge court was convened. 28 U. S. C. § 2284. That court refused to require a hearing on the obscene character of the material before its seizure and the arrest of the plaintiff. It held that the request for such relief was “based on the alleged harassment and . . . not an attack upon the constitutionality of a statute.” The court went on to emphasize that its consideration did “not in any way involve an appraisal of the constitutionality of the application of Article 527 to Plaintiff. Our sole concern is the determination of whether the statute is constitutionally defective on its face.” The three-judge court then turned to the statute itself, and held that §§ 1 and 2 were unconstitutional, and that § 3 would be constitutional only if the definition of obscenity were changed somewhat. The court issued appropriate declaratory and injunctive relief effectuating its conclusions. 300 F. Supp. 602 (1969). Texas officials appealed, and we noted probable jurisdiction. 396 U. S. 954 (1969).
Today we have again stressed the rule that federal intervention affecting pending state criminal prosecutions, either by injunction or by declaratory judgment, is proper only where irreparable injury is threatened. Douglas v. City of Jeannette, 319 U. S. 157 (1943). The existence of such injury is a matter to be determined carefully under the facts of each case. In this case the District Court made no findings of any irreparable injury as defined by our decisions today; therefore, the judgment of the District Court is vacated and the case is remanded for reconsideration in light of Younger v. Harris, ante, p. 37, and Samuels v. Mackell, ante, p. 66. See also Boyle v. Landry, ante, p. 77.
It is so ordered.
Mr. Justice White concurs in the result.
[For concurring opinion of Mr. Justice Stewart, see ante, p. 54.]
Texas Penal Code, Art. 527, 1961 Tex. Gen. Laws, c. 461, § 1, provided:
“Section 1. Whoever shall knowingly photograph, act in, pose for, model for, print, sell, offer for sale, give away, exhibit, televise, publish, or offer to publish, or have in his possession or under his control, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, instrument, statue, drawing, phonograph record, mechanical recording, or presentation, or other article which is obscene, shall be fined not more than One Thousand Dollars ($1,000) nor imprisoned more than one (1) year in the county jail or both.
“Sec. 2. Whoever shall knowingly offer for sale, sell, give away, exhibit, televise, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, instrument, statue, drawing, phonograph record, mechanical recording, or presentation, or other article which is obscene, to a minor shall be fined not more than Two Thousand, Five Hundred Dollars ($2,500) nor imprisoned in the county jail more than two (2) years or both.
“Sec. 3. For purposes of this article the word ‘obscene’ is defined as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided) further, for the purpose of this article, the term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas.
“Sec. 4. Whoever shall be convicted for the second time of a violation of this article shall be deemed guilty of a felony and shall be punished by confinement in the State penitentiary for not more than five (5) years or by a fine of not more than Ten Thousand Dollars ($10,000) or by both such fine and imprisonment.
“Sec. 5. It shall be a defense to any charges brought hereunder if such prohibited matter or act shall be regularly in use in any bona fide, religious, educational or scientific institution or the subject of a bona fide scientific investigation.
“The provisions of this Act shall not apply to any motion pictures produced or manufactured as commercial motion pictures which (1) have the seal under the Production Code of the Motion Picture Association of America, Inc.; or (2) legally move in interstate commerce under Federal Law; or (3) are legally imported from foreign countries into the United States and have been passed by a Customs Office of the United States Government at any port of entry.
“The provisions of this Act shall not apply to any daily or weekly newspaper.
“Sec. 6. The district courts of this State and the judges thereof shall have full power, authority, and jurisdiction, upon application by any district or county attorney within their respective jurisdictions, to issue any and all proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the provisions of this Act.”
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Carroll L. AUSTIN, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Charles S. GLASER, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Judy C. HOWARD, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Nancy BROWN, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Anthony L. DUCKETT, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Josephine HILL, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. David R. FRICK, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Ronnie Dean DUCKETT, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. James A. McABEE, Jr., Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. John Edward WARD, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Robin W. CALDWELL, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant.
Nos. 85-1740(L), 85-1741 to 85-1750.
United States Court of Appeals, Fourth Circuit.
Argued March 4, 1986.
Decided Jan. 23, 1987.
David L. Freeman (Carl F. Muller, Wyche, Burgess, Freeman & Parham, P.A., Greenville, S.C., Robert L. Thompson, Stephen M. Paskoff, Thomas A. Pogue, Elar-bee, Thompson & Trapnell, Atlanta, Ga., on brief), for appellant.
J. Kendall New (Few & Glenn, Greenville, S.C., on brief), for appellees.
Before HALL and WILKINSON, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
MICHAEL, District Judge,
Sitting by Designation:
This case presents four issues for resolution under the law of South Carolina, Federal jurisdiction being predicated on diversity of citizenship. First, does South Carolina common law recognize a cause of action for “blacklisting”? Second, was the language alleged by the plaintiffs below as slanderous sufficient under South Carolina common law and under the evidence presented at trial, to support the jury’s affirmative verdict on the question of slander? Third, were the challenged statements privileged, or qualifiedly privileged, as a matter of law? Fourth, under the evidence adduced, were the plaintiffs caused to suffer actual damages, and, if so, are the plaintiffs entitled to punitive damages?
I. Factual Background
The case arises under a somewhat unusual set of facts. Eleven separate cases were filed against the Torrington Company, Appellant herein, by eleven of its former employees. The complaints asserted claims against Torrington and Webb Forging Company, but Webb was dismissed as a party before trial for lack of diversity jurisdiction, and the cases proceeded against Torrington only. These eleven cases were consolidated and tried to a jury in the United States District Court for the District of South Carolina. Verdicts were returned for all eleven plaintiffs, all receiving monetary awards ranging from $5000.00 to $7500.00 for “hurt feelings”, all receiving monetary awards of $20,000.00 each for punitive damages, and three plaintiffs receiving monetary awards ranging from $1350.00 to $7500.00 for economic loss. The remaining eight plaintiffs received nothing for economic loss.
The verdicts were followed by the defendant’s motion, among others, for judgment non obstante veredicto, or in the alternative for a new trial. This motion was denied, 611 F.Supp. 191, and this appeal followed in timely fashion.
It is apparent that there were some factual differences in the various situations involving the eleven plaintiffs. However, each plaintiff sought actual and punitive damages under two counts, one for defamation and one for “blacklisting”. In each of the eleven complaints, the basis asserted for both allegations was a telephone call between the personnel manager of the Appellant, Mr. Love, and the personnel manager of a separate, similar company, the Webb Forging Company, Mr. Dowd.
Essentially, the facts are not much in dispute, so far as the events giving rise to the charges of defamation and blacklisting are concerned. In 1982, because of economic considerations, the Appellant had been required to lay off many of its personnel. At that time, the Webb Forging Company was in the process of establishing its plant in the same community, to operate in somewhat the same business activity as that of Appellant, and Mr. Dowd was engaged in the process of selecting new employees to staff the Webb Forging Company plant.
Incident to that hiring process, one of the plaintiffs, Charles Glaser, a former employee of Torrington, applied to and was interviewed by Mr. Dowd for a position at the Webb Forging Company. Mr. Glaser had brought to the interview a resume which he left with Mr. Dowd. Dowd then called Mr. Love at Torrington to inquire about matters concerning Glaser’s application. At trial, Dowd testified that he was not certain about the recall rights of employees laid off by Torrington, and that he wished to clarify this question. Love indicated that he was not able to recommend Mr. Glaser for employment, and he then apparently went on to state his views about other former employees of Torrington. Mr. Dowd made notes of these comments as they were made, and ultimately reduced them to a memorandum in the following form:
CONFIDENTIAL INFORMATION
*1. CHARLES GLASER. 17 yrs. (NO)
2. TIM CALICUT MILITANT
3. PAUL RICE WORK.COMP. LABOR BOARD GOOD TALKER (NO)
*4. SONNY MCABEE
*5. NANCY BROWN
*6. JUDY HOWARD ORGANIZER (NOW) + ERA
*7. ROBIN CALDWELL
*8. JOSEPHINE HILL
*9. CARROLL AUSTIN EMOTIONAL PROBLEM (MALE)
*10. DAVID FRICK
*11. ANTHONY DUCKETT MILITANT
*12. RONNIE DUCKETT MILITANT
13. ROBERT JETER
*14. EDDIE WARD
ROCK HILL UNION ORGANIZERS
EDDIE REEVES
RAY RENFROW
? BUMPER
EDDIE NICHOLS AMALGAMATED TEXTILE UNION
This memorandum contained not only the information given by Mr. Love to Mr. Dowd during the telephone call, but also included four names, Eddie Reaves, Ray Renfrow, ? Bumper, and Eddie Nichols, which Dowd had received from Love in a previous meeting when the two had discussed union policies, union methodology, etc., in the area of their operations.
Most of the fourteen people listed on the first part of the memorandum had made one or more applications to Webb Forging for employment after they had been laid off by the Appellant. Dowd testified without contradiction at trial that at the time of his telephone conversation with Love, and for some time thereafter, he had approximately 2500 applications for employment in his files, with less than 100 places to be filled initially, but that his method of selecting employees was to act on the recommendation of persons in the community in whom he had trust, and on the recommendations of current employees of Webb Forging. Upon receiving such a recommendation, he would then interview the individual, and, if necessary, would request that the individual fill out an application form for employment. If he found the recommended individual’s application in the file, he did not require a new application.
Dowd testified that the “confidential information” memorandum, supra, was placed in his desk, and remained there for some eighteen months until a security guard saw the list on Dowd’s desk, recognized at least two names on the list, made a photocopy of the list, and gave that photocopy to one of the plaintiffs, Austin, who was the nephew of the security guard.
Thereafter, Austin filed suit against the Appellant, and the attendant publicity alerted the other ten plaintiffs to the fact that their names also were contained on the list. The remaining ten plaintiffs then each brought suit and the matter came on for trial. Two of those mentioned on the list who became plaintiffs, Robin Caldwell and David Frick, did not apply for employment with Webb during the period involved in the case.
II. Discussion
The standard for appellate review of a judgment below, on appeal of denial of a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, is whether there is evidence upon which a jury could properly find a verdict, Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). Appellate review is not to weigh the contrasting evidence, not to judge credibility of witnesses, and not to substitute the reviewer’s judgment of the facts for that of the jury. See Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221 (4th Cir.1985) (rev’d en banc on other grounds).
Against this standard, an old case, still followed, holds that a “scintilla” of evidence is not enough to sustain a verdict, Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall) 442, 448, 20 L.Ed. 867 (1871), and case law further provides that any inferences drawn by the jury must be “reasonably probable;” mere speculation is insufficient. Lovelace v. Sherwin-Williams, Co., 681 F.2d 230, 241-42 (4th Cir.1982).
Applying these requirements to the evidence below, as adduced in the Joint Appendix and the Supplemental Appendix, we address first the issue of blacklisting, and second the issue of slander, noting, as set out more fully infra, that the law of South Carolina actively invokes the concept of malice under both issues.
As a preliminary to consideration of the first issue, the point is made in Appellees’ brief that no objection was made in the court below to the charge given the jury on the question of blacklisting. This court ordinarily does not address here objections not timely and properly saved in the trial below. An exception to this rule is that which requires the reviewing court to consider an error of law which adversely affects the substantive rights of the appellant. As this court has said, “There are instances, however, when issues not previously raised should be entertained on appeal. If the error is ‘plain’ and a refusal to treat it would result in a denial of fundamental justice, it should be decided.” See United States v. Barge Shamrock, 635 F.2d 1108, 1111 (4th Cir.1980). Further, “Indeed, if deemed necessary to reach the correct result, an appellate court may sua sponte consider points not presented to the district court and not even raised on appeal by any party.” See Ricard v. Birch, 529 F.2d 214, 216 (4th Cir.1975), quoting from Washington Gas Light v. Virginia Electric and Power Co., 438 F.2d 248 (4th Cir.1971). Here, Appellant’s contention is that the court below recognized as a tort cognizable under South Carolina law the act of blacklisting, which recognition severely affected adversely the Appellant on this issue. If there is in fact no such tort recognized under South Carolina law, and if the charge of the court did recognize blacklisting as a tort, then there has been a plain error of law which has, in light of the verdicts, severely affected adversely the rights of the Appellant. Thus, we examine the case to determine answers to these questions.
A. Blacklisting as a tort:
There is sharp controversy between the parties as to whether South Carolina in fact recognizes “blacklisting” as a cause of action separate and distinguishable from the tort of slander. From the case law the act of blacklisting in itself is not considered to be a tort under the law of South Carolina. Rhodes v. Granby Cotton Mills, 87 S.C. 18, 68 S.E. 824 (1910). In Parker v. Southeastern Haulers, 210 S.C. 18, 41 S.E.2d 387 (1947), the court said that, “the majority of an able court [in Granby ] held that the blacklist was not illegal per se ....” 210 S.C. at 28, 41 S.E.2d at 391, 392. Under both Granby and Parker, South Carolina law requires that, in order for blacklisting to constitute a tort, there must be some willful or malicious use of the blacklist, by one or a combination of the parties who prepared and used the blacklist, which willful or malicious use results in injury to the plaintiff. Thus, under these cases, the simple act of blacklisting is not a tort in South Carolina. Rather, to effectuate a recovery under a blacklisting theory, the plaintiff must prove that there was a blacklist, a combination of employers who exchanged the information contained on the blacklist, and a willful or malicious use of that blacklist by one or more of the members of the combination, with resultant injury to the plaintiff. See supra, Granby, 87 S.C. at 42-44, 68 S.E. at 833-4 (Woods, J., concurring).
No controversy exists about the fact that the two employers, speaking through Dowd and Love, did in fact exchange information concerning plaintiffs below which represented a “blacklisting” of those individuals. To the extent that Dowd accepted additional information about other former employees in addition to Glaser, as proffered by Love, that exchange of information covered all of the persons on the “confidential information” memorandum as set out and discussed supra.
The next question to be addressed, then, is whether the evidence below can sustain a finding of willful or malicious use of that blacklist with resultant injuries to the plaintiffs. First, the evidence at trial indicates that Dowd did not use the list’s information at all. His testimony is that the list was never used by him in any way in evaluating any potential employee of Webb Forging. However, there is evidence that the blacklist was seen on Dowd’s desk on one or more occasions, most particularly when the security guard saw the list on Dowd’s desk and made a photocopy. If the jury chose to believe the testimony of the security guard and others that the list was seen on Dowd’s desk, it would have weakened Dowd’s testimony that he never referred to the list. However, it appears from the oral argument, the briefs, and the joint appendix that the plaintiffs do not assert a willful or malicious motive on Dowd’s part in making the list. Rather, plaintiffs focus on Love; they assert that there was ample evidence from which the jury could have concluded that Love’s giving of the information was done maliciously with the intent to hurt the plaintiffs. This was, of course, strenuously denied by Love throughout his testimony at trial. Love testified that the communication of such information is a regular and permissible activity among personnel managers of various employers.
Of some importance, there is a factual distinction between the facts in this case and those in Granby, supra. In Granby, the plaintiff had been mistakenly placed on a list of strikers which had been exchanged with other employers. It was conceded that the plaintiff had not been a striker at all. Nevertheless, his name had been retained on the list of strikers even after the listing employer had known that the plaintiff was not a striker. Under these facts, a finding that there was some willful or malicious motive activating the employer in keeping the plaintiffs name on the striker list is an understandable, and defensible, conclusion.
In the present appeal, however, the evidence advanced to support a finding of malicious conduct in connection with the blacklist presents a far different picture. Appellees advance three propositions in attempting to prove a willful or malicious motive by Love: first, of his own volition Love volunteered the information concerning the plaintiffs, except for Charles Glaser; second, the information was in derogation of the plaintiffs’ suitability for employment with Webb Forging; third, the information was false.
Given the proposition that blacklisting is not illegal per se, we cannot see how the three assertions above can be said, in and of themselves, to prove malice by Love. As the Court noted in the Granby opinion, Love’s giving such information to Dowd in the context of their mutual interests in the employment process is allowable under South Carolina law. In a broader context, where such information is exchanged because of a mutual interest in its content, and without malice, penalizing that exchange would be a grave disservice to the employer. Certainly, the prospective employer seeks to acquire information judged pertinent by it to facilitate decision as to employment vel non. The former employer is a source of such information, and perhaps the only source. Proscribing such an interchange would severely inhibit the right of employers to communicate on a matter of serious, mutual concern. It appears that this reasoning underlies the decision of the Court expressed in Judge Woods’ concurring opinion in Granby, supra, and this Court finds that reasoning strongly persuasive as it is applied in the South Carolina law.
The fact that Love proffered the information as to all plaintiffs, except Glaser, without specific inquiry by Dowd loses significance in light of the fact that Dowd initiated the exchange by inquiring about the reinstatement rights of former employees of Torrington. Glaser’s application precipitated the inquiry, but the answer to the question as to Torrington reinstatement policy was obviously general in application to all former employees. In the context of that generalized inquiry and response, discussion of employees other than Glaser flowed as a natural consequence.
That the information exchanged between Love and Dowd related to and dealt with the suitability of the plaintiffs for employment is simply the function of such a list. Information normally found in such a list deals with the question of suitability of employment.
Whether the information on the list was or was not false is, in the context of the factual pattern here, more a function of subjective opinion than refutable fact. Nothing in the evidence from trial indicates that the falsity, if any, of the information contained on the list was brought home to Love, except in one case. In that instance, a fellow employee of Judy Howard told Love that Howard was neither an organizer for NOW nor an organizer for ERA. Love apparently responded that he had information which was contrary to that statement and he apparently relied upon that contrary information in his phone conversation with Mr. Dowd. We have already indicated that blacklisting is not illegal per se under South Carolina law. Given this, the subjective opinions of a person making a blacklist do not, in and of themselves, establish malice or a wanton desire to hurt the persons on the list. No information concerning the possible falsity of any of the statements is brought home to Love, except in the case of Howard. In that one case, the mere existence of conflicting information falls far short of establishing on the part of Love malice with respect to the information on the blacklist concerning her.
After a detailed review of the record, we can find no evidence upon which the plaintiffs could have relied in asserting proof of malice. The three bases asserted by plaintiffs to support a finding of malice, i.e., volunteering information, derogatory information, and falsity of the information, if assumed to be true, do not present as much as that “scintilla” of evidence, under the facts in this case. South Carolina’s concept of the necessary “scintilla of evidence” describes it as evidence which must be “real, material, and pertinent and relevant evidence, not speculative and theoretical deductions.” See Turner v. American Motorists Ins. Co., 176 S.C. 260, 264, 180 S.E. 55, 57 (1935). More than that “scintilla” of evidence is required to permit the conclusion that the inference drawn here by the jury was “reasonably probable,” and not the product of speculation. The record, simply put, does not disclose evidence relating to these three factors that can support the quantum leap from the three factors to establishing the required willful or malicious misconduct “ — malice in fact — ” on the part of Love. For a discussion of factors held insufficient to establish malice in fact, though much stronger factors favoring the plaintiff than those in the case at bar, see Bell v. Bank of Abbeville, 211 S.C. 167, 44 S.E.2d 328 (1947) (second opinion).
B. Slander:
Under the law of South Carolina, an action for slander requires that the challenged statement be both defamatory and actionable. A defamatory statement is a statement which tends to impeach the plaintiff’s reputation. To be actionable, that statement must also injure the plaintiff. Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609 (1978).
Where a statement is defamatory per se, it is actionable without any proof of special damages. Where the defamatory statement is not defamatory per se, there must be proof of special damages. Capps, supra, 246 S.E.2d at 611. Where special damages are required, in the case of a defamatory statement which is not defamatory per se, those special damages must be a loss of money or some other loss capable of being assessed at a monetary value. Smith v. Phoenix Furniture Co., 339 F.Supp. 969, 971 (D.S.C.1972).
Here, the district court below held that the entire conversation between Love and Dowd bore a qualified privilege, because of the serious, common interests held by Love and Dowd. The status of the challenged statements as qualifiedly privileged, while not conceded by the appellees, is nonetheless cursorily treated in their brief, asserting now that because Love spoke of other employees than Glaser, Love went beyond the scope of the privilege, so that the protection of qualified privilege was lost.
The court below charged the jury on this point in the following language:
I charge you that the qualified privilege is applicable to this case and that the defendant is entitled to assert and rely upon this defense. The effect of the qualified privilege defense is to cast upon the plaintiffs the burden of proving malice in fact on the part of the defendant by a preponderance of the evidence____
There was no objection below by the plaintiffs to this portion of the charge. Thus, under South Carolina law regarding qualified privilege, the plaintiffs had the heavier burden below of proving defamation, injury, and malice in fact on the part of Love, in order to prevail on their charges of slander. Conwell v. Spur Oil Co., 240 S.C. 170, 181, 125 S.E.2d 270, 276 (1962). There is no dispute among the parties that Mr. Love and Mr. Dowd had a common interest, each serving as a personnel manager for an employer in the same community, and from these facts the court below concluded that a qualified privilege existed. The conclusion is clear, and substantially not disputed that the substance of Love’s comments to Dowd was that Love could not recommend plaintiffs for employment. It is on this substance that the appellees attempt to engraft malice in fact.
Some consideration of just what was recorded on the memorandum as to the plaintiffs is in order here. As to Glaser, the comment is “17 yrs. (NO)”; as to Howard, “organizer (NOW) & ERA”; as to Austin, “Emotional Problem (male)”; as to A. Duckett and R. Duckett, “militant”; as to McAbee, Brown, Caldwell, Hill, Frick, and Ward, there are no comments of any sort.
Thus, as to the six plaintiffs for whom no comment is made, there is simply no slanderous statement to be found, unless the plaintiffs would have the Court adopt some scheme which would embrace all plaintiffs in a sort of umbrella theory.
Even if this Court were willing to do so, consideration of the comments made as to the five plaintiffs fails to show the required degree of injury which impeaches the particular plaintiff’s reputation. As to Glaser, the comment is “17 yrs. (No)”. Taken under all the facts here, the statement is Love’s statement that he would not recommend hiring Glaser. We cannot see how more can be read into this comment. As to Judy Howard, the comment is “Organizer (NOW) & ERA”. It is doubtful that there ever was a day when being stated to be an organizer for the National Organization of Women and the Equal Rights Amendment was considered a slander, but certainly that would scarcely be considered the case today or at the time of trial below. As to Austin, the comment is “Emotional Problem (male).” The statement is obviously one of the opinion of Love, but, again, the language used does not “tend to impeach the reputation of the plaintiff.” See, Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609. As to “emotional problem,” aside from the matter of expressing an opinion, these words, without more, identify nothing of the nature of whatever problems there might have been, but leave the reader to speculate according to the individual’s predilections to assign some further meaning to these words. It is impossible to assign any slanderous meaning to the identification of Austin as “(male)”. As to A. Duckett and R. Duck-ett, the comment is “Militant” as to both. Again, Love expresses an opinion, but there is perhaps more comfort to be drawn by these plaintiffs from that description than there are adverse inferences. In the context in which the notes were made, the description may be intended to indicate strong pro-employee feelings and actions, but, as in all the above analyses of these comments, the most important consideration is that each of the descriptions is given in the framework of qualified privilege, and here, as in the previous comments noted, the statement is intended to convey to Dowd information he could consider in his hiring decisions.
In the fact pattern in this case, and in light of the qualified privilege attaching to the communication, the evidence will not support a finding of slander.
If we assume, however, that this information went beyond a simple statement of non-recommendation for employment, and the memorandum taken as a whole was thus defamatory as to each name listed thereon, the plaintiffs still face the burden of proving actual malice. An inference of malice is not sufficient where the statements are found to be qualifiedly privileged, as was the case below. See Woodward v. South Carolina Farm Bureau Insurance Co., 277 S.C. 29, 282 S.E.2d 599 (1981).
The opinion in Padgett v. Sun News, 278 S.C. 26, 292 S.E.2d 30 (1982) sets out the following definition of “actual malice,” as that term is understood in the law of South Carolina. It requires that the defendant
acted “with ill will toward the plaintiff or that [he] acted recklessly or wantonly, meaning with conscious indifference toward plaintiff’s rights”, and requires that “at the time of his act or omission to act the tortfeasor be conscious, or chargeable with consciousness of his wrongdoing.” Rogers v. Florence Printing Co., 233 S.C. 567, 577, 106 S.E.2d 258; Jones v. Gamer, 250 S.C. 479, 158 S.E.2d 909.
Sun News, 292 S.E.2d at 34.
No evidence of record supports the proposition that Love at the time of transmitting the challenged statements to Dowd was “at the time of his act or omission to act [was] conscious or chargeable with consciousness of his wrongdoing.” As illustrated in the discussion of the South Carolina law governing blacklisting and intentional, improper interferences, etc., Love acted in a way which did not give rise to a tort action under these theories. Certainly, nothing in the evidence showed that Love was “conscious” of any wrongdoing.
It should be noted, also, that under the “actual malice” formulation of Sun News, supra, ill will and consciousness of wrongdoing are conjunctive, so that each element must be supported by more than a “scintilla” of evidence before “actual malice” can be found.
We conclude that, as a matter of law, there was a failure in the evidence below to demonstrate actual malice. Four of the plaintiffs testified below that they “got along fine” with Love. Appellees suggest in their brief that there is only evidence of actual malice toward one of the plaintiffs, Nancy Brown. However, Mrs. Brown’s own testimony itself belies this argument. She stated at trial that there had been some sharp words between her and Mr. Love some two years or more before the blacklisting incident. This is the only evidence advanced to show malice in fact on Love’s part toward Nancy Brown. In contrast, the recitation of facts suggesting actual malice in Bell v. Bank of Abbe-ville, supra (second opinion), shows a series of incidents, far severer than those revealed as to Nancy Brown, which series of incidents was not enough to provide that necessary “scintilla of evidence.” Further, Nancy Brown testified that after the incident relied on she had continued to work under Love’s supervision and her relationship with him after the incident complained of had been very good. She did not deny Love’s testimony to the effect that he had evaluated her for the highest possible wage increases in the intervening two years, and she believed Love was sorry that she was discharged during the reduction in the Tor-rington Co. work force. Taking the Brown testimony as a whole, that testimony is, if possible, less than the “scintilla” of evidence discussed supra. Certainly it is not sufficient, as a matter of law, to support a finding that malice in fact on the part of Mr. Love existed at the time the memorandum was prepared.
Similarly, plaintiffs’ argument that malice on Love’s part as to plaintiff Howard could be inferred from certain facts fails, since, given a qualified privilege, there must be proof of malice in fact.
If plaintiffs rely entirely on the Brown incident between Mr. Love and Ms. Brown, as apparently they must, for their proof of actual malice, then, as a matter of law, this evidence does not establish Love’s ill will toward Ms. Brown, and that he acted recklessly or wantonly with a conscious indifference toward her rights, and was conscious, or chargeable with consciousness of his wrongdoing.
We thus conclude that the statements in question were qualifiedly privileged, there was no proof at trial of actual malice on the part of Love, and thus the verdict of the jury on the slander count of the complaint was not supported by the evidence.
III. Conclusion
Because we have found that the verdicts of the jury on the blacklisting and slander counts cannot stand, it is not necessary to address the issues relating to damages, as those issues have been asserted on appeal.
For the reasons indicated above, the decision of the court below in denying a directed verdict is reversed, and the case is remanded with directions to enter judgment for the defendant.
REVERSED AND REMANDED.
. The asterisks were not on the memorandum prepared by Mr. Dowd, but have been added to identify the eleven persons out of the group of fourteen who became plaintiffs.
. As indicated in the discussion of the requirement of malice, infra, and of the qualifiedly privileged nature of the communication, also discussed infra, the malice must be "express or actual” malice, sometimes referred to as "malice in fact,” that is, that Love was "actuated by ill will in what he did and said, with the design to causelessly and wantonly injure” the plaintiffs. See Belt v. Bank of Abbeville, 208 S.C. 490, 495, 38 S.E.2d 641, 643 (1946).
. A change in this aspect of the law of South Carolina may come about as a result of applying the doctrine of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny in a proper state case. However, no such change has been found in any reported South Carolina case. In fact, the latest South Carolina case dealing with this aspect of the law reiterates the principle set out in the text of this opinion, see Capps, supra, 246 S.E.2d at 609, the Capps opinion having been handed down some fourteen years after New York Times v. Sullivan. Thus, taking South Carolina law as it now stands, Capps affirms the principle presently followed in the reported South Carolina cases.
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_respond1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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 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).
UNITED STATES v. WIGGIN.
No. 4094.
Circuit Court of Appeals, Fourth Circuit.
April 6, 1937.
Robert E. Wilson, Atty., Department of Justice, of Columbia, S. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., and Young M. Smith, Atty., Department of Justice, of Washington, D C., on the brief), for the United States.
John W. Crews, of Columbia, S. C., for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PER CURIAM.
This is a suit on a converted policy of war risk insurance which was kept in force by the payment of premiums until February 5, 1931. The only question raised by the appeal is whether there was sufficient evidence that plaintiff was totally and permanently disabled on that date to carry the case to the jury. We do i!ot think that there was. There is evidence which justifies the conclusion that on that date and prior thereto plaintiff was suffering from visceroptosis, or falling of the organs of the abdominal cavity, and also from hypothyroidism, and that these, together with injury to a foot which he sustained while serving in the Navy, resulted in partial disability; but there is no evidence to justify the conclusion that at the time of the lapse of the policy the disability had become total or that it was of such character that it could not have been relieved by proper treatment. On the contrary, it appears that plaintiff worked as foreman of. a print shop with a printing company of which he was vice president until the fall of 1931, at a salary of $225 per month; that during the winter of 1932-1933 he was engaged with another in the operation of a printing company, which they sold in the spring of 1933; and that, from April, 1933, until December, 1934, he worked for another printing company, making about half time and earning an average of around twenty-two or twenty-three dollars per week. While the plaintiff testified that he quit work in the fall of 1931 because he was unable to work, there is no evidence that his condition, even at that time, could not have been relieved by proper treatment, and no evidence that his subsequent employment was fraught with danger to his health. Under the circumstances, the government’s motion for a directed verdict should have been granted. Mikell v. United States (C. C.A.4th) 64 F.(2d) 301, 303; United States v. Farnsworth (C.C.A.4th) 77 F.(2d) 91; Boone v. United States (C.C.A.4th) 79 F. (2d) 702; United States v. Derrick (C.C.A. 4th) 83 F.(2d) 99. The judgment appealed from will accordingly be reversed.
Reversed.
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)". 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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE
No. 06-1595.
Argued October 8, 2008
Decided January 26, 2009
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 280.
Eric Schnapper argued the cause for petitioner. With him on the briefs was Ann Buntin Steiner.
Lisa S. Blatt argued the cause for the United States as amicus curiae in support of petitioner. With her on the brief were former Solicitor General Clement, Solicitor General Garre, Acting Assistant Attorney General Becker, Dennis J. Dimsey, Angela M. Miller, Ronald S. Cooper, Carolyn L. Wheeler, and Jennifer S. Goldstein.
Francis H. Young argued the cause for respondent. With him on the brief was James L. Charles.
Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Marc Dann, Attorney General of Ohio, William P. Marshall, Solicitor General, Benjamin C. Mizer and Kimberly A. Olson, Deputy Solicitors, and Susan A Choe, Patrick M. Dull, and Duffy W. Jamieson, Assistant Attorneys General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, Terry Goddard of Arizona, Richard Blumenthal of Connecticut, Beau Biden of Delaware, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Tom Miller of Iowa, Jack Conway of Kentucky, Martha Coakley of Massachusetts, Michael A Cox of Michigan, Mike McGrath of Montana, Anne Mil-gram of New Jersey, Gary K. King of New Mexico, Andrew M. Cuomo of New York, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Darrell V. McGraw, Jr., of West Virginia; for the Leadership Conference on Civil Rights et al. by Michael L. Foreman and Michael B. de Leeuw; for the National Employment Lawyers Association et al. by Bruce B. Elfvin, Christina M. Royer, Mary L. Heen, Adele P. Kimmel, and Catherine K. Ruckelshaus; for the National Women’s Law Center et al. by Melissa Hart, Marcia D. Greenberger, Jocelyn F. Samuels, and Dina R. Lassow; and for the Tennessee Education Association et al. by Richard L. Colbert and Courtney L. Wilbert.
Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States of America by Catherine E. Stetson, Jessica L. Ellsworth, Robin S. Conrad, and Shane Brennan; for the Equal Employment Advisory Council et al. by Rae T. Vann, Alexandra Tsiros, Karen R. Harried, and Elizabeth G. Milito; and for the National School Boards Association by Francisco M. Negrón, Jr., Lisa E. Soronen, F. Damon Kitchen, Jack R. Wallace, and Robert J. Sniffen.
Justice Souter
delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (2000 ed. and Supp. V), forbids retaliation by employers against employees who report workplace race or gender discrimination. The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. We hold that it does.
I
In 2002, respondent Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes. 211 Fed. Appx. 373, 374 (CA6 2006). When Veronica Frazier, a Metro human resources officer, asked petitioner Vicky Crawford, a 30-year Metro employee, whether she had witnessed “inappropriate behavior” on the part of Hughes, id., at 374-375, Crawford described several instances of sexually harassing behavior: once, Hughes had answered her greeting, “‘Hey Dr. Hughes, [wjhat’s up?/ ” by grabbing his crotch and saying “ ‘[Y]ou know what’s up’ he had repeatedly “ ‘put his crotch up to [her] window’ and on one occasion he had entered her office and “ ‘grabbed her head and pulled it to his crotch/ ” id., at 375, and n. 1. Two other employees also reported being sexually harassed by Hughes. Id., at 375. Although Metro took no action against Hughes, it did fire Crawford and the two other accusers soon after finishing the investigation, saying in Crawford’s case that it was for embezzlement. Ibid. Crawford claimed Metro was retaliating for her report of Hughes’s behavior and filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC), followed by this suit in the United States District Court for the Middle District of Tennessee. Ibid.
The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees ... [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. § 2000e-3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and Crawford accused Metro of violating both.
The District Court granted summary judgment for Metro. It held that Crawford could not satisfy the opposition clause because she had not “instigated or initiated any complaint,” but had “merely answered questions by investigators in an already-pending internal investigation, initiated by someone else.” Memorandum Opinion, No. 3:03-cv-0996 (MD Tenn., Jan. 6,2005), App. C to Pet. for Cert. 16a-17a. It concluded that her claim also failed under the participation clause, which Sixth Circuit precedent confined to protecting “'an employee’s participation in an employer’s internal investigation . . . where that investigation occurs pursuant to a pending EEOC charge’ ” (not the case here). Id., at 15a (emphasis deleted) (quoting Abbott v. Crown Motor Co., 348 F. 3d 537, 543 (CA6 2003)).
The Court of Appeals affirmed on the same grounds, holding that the opposition clause “'demands active, consistent “opposing” activities to warrant... protection against retaliation,’” 211 Fed. Appx., at 376 (quoting Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607, 610 (CA6 2004)), whereas Crawford did “not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing,” 211 Fed. Appx., at 376. Again like the trial judge, the Court of Appeals understood that Crawford could show no violation of the participation clause because her “ ‘employer’s internal investigation’ ” was not conducted “‘pursuant to a pending EEOC charge.’” Ibid, (quoting Abbott, supra, at 543).
Because the Sixth Circuit’s decision conflicts with those of other Circuits, particularly as to the opposition clause, see, e. g., McDonnell v. Cisneros, 84 F. 3d 256, 262 (CA7 1996), we granted Crawford’s petition for certiorari. 552 U. S. 1162 (2008). We now reverse and remand for further proceedings.
II
The opposition clause makes it “unlawful ... for an employer to discriminate against any... employe[e]... because he has opposed any practice made . . . unlawful ... by this subchapter.” §2000e-3(a). The term “oppose,” being left undefined by the statute, carries its ordinary meaning, Perrin v. United States, 444 U. S. 37, 42 (1979): “[t]o resist or antagonize ...; to contend against; to confront; resist; withstand,” Webster’s New International Dictionary 1710 (2d ed. 1957). Although these actions entail varying expenditures of energy, “resist frequently implies more active striving than OPPOSE.” Ibid.; see also Random House Dictionary of the English Language 1359 (2d ed. 1987) (defining “oppose” as “to be hostile or adverse to, as in opinion”).
The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as “resist[ant]” or “antagonistic]” to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: “When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication” virtually always “constitutes the employee’s opposition to the activity.” Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8-II-B(l), (2), p. 614:0003 (Mar. 2003)); see also Federal Express Corp. v. Holowecki, 552 U. S. 389, 399 (2008) (explaining that EEOC compliance manuals “reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ ” (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998))). It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them.
The Sixth Circuit thought answering questions fell short of opposition, taking the view that the clause “ ‘demands active, consistent “opposing” activities to warrant. . . protection against retaliation/” 211 Fed. Appx., at 376 (quoting Bell, supra, at 610), and that an employee must “instigat[e] or initiat[e]” a complaint to be covered, 211 Fed. Appx., at 376. But though these requirements obviously exemplify opposition as commonly understood, they are not limits of it.
“Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. Cf. McDonnell, supra, at 262 (finding employee covered by Title VII of the Civil Rights Act of 1964 where his employer retaliated against him for failing to prevent his subordinate from filing an EEOC charge). There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.
Metro and its amici support the Circuit panel’s insistence on “active” and “consistent” opposition by arguing that the lower the bar for retaliation claims, the less likely it is that employers will look into what may be happening outside the executive suite. As they see it, if retaliation is an easy charge when things go bad for an employee who responded to enquiries, employers will avoid the headache by refusing to raise questions about possible discrimination.
The argument is unconvincing, for we think it underestimates the incentive to enquire that follows from our decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998). Ellerth and Faragher hold “[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with ... authority over the employee.” Ellerth, supra, at 765; Faragher, supra, at 807. Although there is no affirmative defense if the hostile environment “culminates in a tangible employment action” against the employee, Ellerth, 524 U. S., at 765, an employer does have a defense “[w]hen no tangible employment action is taken” if it “exercised reasonable care to prevent and correct promptly any” discriminatory conduct and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” ibid. Employers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability. Ibid.; see also Brief for Petitioner 24-28, and nn. 31-35 (citing studies demonstrating that Ellerth and Faragher have prompted many employers to adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct). The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense.
That aside, we find it hard to see why the Sixth Circuit’s rule would not itself largely undermine the Ellerth-Faragher scheme, along with the statute’s “‘primary objective’” of “avoiding] harm” to employees. Faragher, supra, at 806 (quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975)). If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that “[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005); see also id., at 37, and n. 58 (compiling studies). The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . . preventive or corrective opportunities provided by the employer.” Ellerth, supra, at 765. Nothing in the statute’s text or our precedent supports this catch-22.
Because Crawford’s conduct is covered by the opposition clause, we do not reach her argument that the Sixth Circuit misread the participation clause as well. But that does not mean the end of this case, for Metro’s motion for summary judgment raised several defenses to the retaliation charge besides the scope of the two clauses; the District Court never reached these others owing to its ruling on the elements of retaliation, and they remain open on remand.
Ill
The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Because this case arises out of the District Court’s grant of summary judgment for Metro, “we are required to view all facts and draw all reasonable inferences in favor of the nonmoving party, [Crawford].” Brosseau v. Haugen, 543 U. S. 194, 195, n. 2 (2004) (per curiam).
Metro suggests in passing that it was unclear whether Crawford actually opposed Hughes’s behavior because some of her defensive responses were “inappropriate,” such as telling Hughes to “bite me” and “flip[ping] him a bird.” Brief for Respondent 1-2 (internal quotation marks omitted). This argument fails not only because at the summary judgment stage we must “view all facts and draw all reasonable inferences in [Crawford’s] favor,” Brosseau, 543 U. S., at 195, n. 2, but also because Crawford gave no indication that Hughes’s gross clowning was anything but offensive to her.
Metro also argues that “[Requiring the employee to actually initiate a complaint. .. conforms with the employee’s ‘obligation of reasonable care to avoid harm’ articulated in Faragher and Ellerth.” Brief for Respondent 28 (quoting Faragher v. Boca Raton, 524 U. S. 775, 807 (1998)). But that mitigation requirement only applies to employees who are suffering discrimination and have the opportunity to fix it by “tak[ing] advantage of any preventive or corrective opportunities provided by the employer,” 524 U. S., at 807; it is based on the general principle “that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize . . . damages,’ ” id,., at 806 (quoting Ford Motor Co. v. EEOC, 458 U. S. 219, 231, n. 15 (1982)). We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not “victims” of anything until they are retaliated against, and it would be absurd to require them to “mitigate” damages they may be unaware they will suffer.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Appellee, v. Lorenzo ALLEN, a/k/a Ren, Appellant. UNITED STATES of America, Appellee, v. Frances Sylvester LINDSEY, Appellant. UNITED STATES of America, Appellee, v. Roger Lee HARRELL, a/k/a DuBuck, Appellant.
Nos. 85-5170(L), 85-5171 and 85-5172.
United States Court of Appeals, Fourth Circuit.
March 31, 1987.
John W. Eppler (Harlan, Knight, Dudley & Pincus on brief); Chris A. Christie (Christie, Held, Kantor, Spanoulis & Christie on brief); Paul Ray for appellants.
Philip Krajewski, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., on brief) for appellee.
Before ERVIN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Appellants were convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) and for conspiracy to commit that offense under 18 U.S.C. § 371. They appealed on three grounds, one of which claimed that the prosecutor’s selection of the jury was racially motivated. This court affirmed. 787 F.2d 933 (4th Cir.1986). In Batson, the Supreme Court held that defendants may establish a prima facie case of purposeful discrimination in juror selection “solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Batson v. Kentucky,— U.S.-, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986).
The Supreme Court subsequently held that Batson applied retroactively to all cases pending on direct review. Griffith v. Kentucky,—U.S.-, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Therefore, the Supreme Court granted certiorari, vacated the judgment, and remanded this case for reconsideration. Allen v. U.S.,—U.S.-, 107 S.Ct. 1271, 94 L.Ed.2d 132 (1987). The holdings on the other two issues, regarding the admissibility of lay opinion evidence and evidence obtained during a Terry stop, were not affected.
The appellants initially contended that the prosecutor used his peremptory challenges to systematically exclude blacks from the jury. The government responded that three black citizens served on the trial jury. In the supplemental briefs requested by this court after Batson, the government also contended that it did not use its final peremptory challenge to remove any of these black jurors.
We believe that factual contentions of this nature are best resolved in the district court. “We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Batson, 106 S.Ct. at 1723. Therefore, we remand to the district court for reconsideration of this issue in light of Batson.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re KISSINGER. KISSINGER v. KELI.
No. 4901.
Circuit Court of Appeals, Seventh Circuit.
July 18, 1933.
Bernard A. Klatt, of Milwaukee, Wis., for appellant.
Edward H. Clemens, of Sheboygan, Wis., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
PER CURIAM.
This appeal presents a single issue, namely, whether the District Court erred in affirming the order of the referee in bankruptcy directing the trustee to take possession of certain premises located in Sheboygan, Wis., scheduled by the bankrupt as belonging' to himself, and upon which he claimed exemption by virtue of the Wisconsin Statutes, section 272.20, relating to homestead. The record indicates that there was substantial evidence introduced tending to show that appellant had never adopted the premises in question as his homestead, having resided in Madison, Wis., where he was in business for over a year prior to the purchase of the property, and having lived in the home of his parents in a different town after he bought it. Such evidence would very well warrant the order of the referee denying the claim of homestead, and this court has no power to question the interpretation of the evidence upon which the finding was based. We are warranted in inferring that appellant has reached the same conclusion from the fact that he failed to appear at the argument of the cause.
Order affirmed.
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION, Plaintiff-Appellant, v. LOCAL 7 OF the INTERNATIONAL BROTHERHOOD OF OPERATIVE POTTERS, AFL-CIO, Defendant-Appellee.
No. 16888.
United States Court of Appeals Sixth Circuit.
March 31, 1966.
J. Mack Swigert, Cincinnati, Ohio, for appellant, Austen B. McGregor, New York City, on the brief, Samuel R. McKinney, Tiffin, Ohio, of counsel.
Joseph E. Finley, Cleveland, Ohio, for appellee, Melvin S. Schwarzwald, Cleveland, Ohio, Arthur F. Graham, Tiffin, Ohio, on the brief, Metzenbaum, Gaines, Schwartz, Krupansky, Finley & Stern, Cleveland, Ohio, Spellerberg & Graham, Tiffin, Ohio, of counsel.
Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.
HARRY PHILLIPS, Circuit Judge.
This appeal involves a dispute as to whether certain grievances are subject to arbitration‘under the terms of a collective bargaining agreement.
The employer (appellant) manufactures plumbing ware, among other things. It has a three-year national “basic agreement” with the International Union of Operative Potters, AFL-CIO, and a concurrent three year local bargaining agreement at its Ohio plant with the local union, appellee herein.
The union demanded arbitration of certain grievances hereinafter described. The employer filed this action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the Declaratory Judgments Act, 28 U.S.C. § 2201, seeking an adjudication that the grievances are not arbitrable and that the employer will not be bound by any decision by the arbitrator in the arbitration proceedings initiated by the union. The complaint also prayed for an order staying the arbitration proceedings.
The district court refused to stay arbitration and entered summary judgment in favor of the union, holding that:
“The Court finds that the grievances in question involve the application, interpretation, or alleged violation of a provision of the collective bargaining agreement, and that the subject matter of said grievances has in no manner been excluded from the scope of the arbitration agreement. Under the terms of the collective bargaining agreement the parties are obligated to submit these grievances to arbitration.”
This court heretofore denied appellant’s motion for preliminary injunction restraining arbitration pending appeal. The case was advanced on our docket for argument.
Provisions of both the basic agreement with the National Union and the local agreement with the appellee local union are before this court for construction.
Article VII of the basic agreement contained a “no strike clause,” a definition of a grievance, and a provision for arbitration of the grievances.
The local agreement provided, in relevant part, that wages effective on the date of the agreement would remain in effect for the duration of the agreement; that management would retain the right to determine the basis of wages; and that management retained the right to introduce new methods of production.
During the period that both agreements were in effect, the employer initiated some important changes in its “glost department,” whereby it introduced the use of conveyors as a means of moving products and upon which the necessary work could be done. This eliminated the use of lift trucks and work benches and markedly reduced the physical handling of the various products. Thereafter the employer reclassified all previous jobs in the glost department, describing the new jobs as “conveyor assembler,” “conveyor shipper,” “conveyor packer,” “conveyor lavatory fitter,” etc., in the place of the old title of “assembler,” “shipper,” “packer,” “lavatory fitter,” etc. The employer also changed the rate of pay from piece rate to hourly rates.
Appellant contends that new jobs were created and that under the contract this was a prerogative of management (footnotes 3 and 6); and that it could set the wage rates thereon (footnote 5).
The union does not dispute the interpretation of the agreement to the effect that if new jobs were created then management may establish the wage rates under the above cited provisions. It is the position of the union, however, that no new jobs were created inasmuch as there has been no change occurring in the basic operation performed by the workmen and that therefore management has violated Article V, Section 1 of the local agreement (quoted, footnote 4). The union contends that the change resulted in the loss of approximately $1.00 or more per hour to the workers.
We recognize that there may be ambiguity between Article V, Section 1 of the local agreement, relied upon by the union, and Article VII, Section 7(f) of the basic agreement and Article VII, Sections 1 and 2 of the local agreement, relied on by the employer. It is the function of the courts to determine whether a dispute is subject to arbitration. A party will not be required to arbitrate a dispute which he has not agreed by contract to submit to arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409; Jefferson City Cabinet Co. v. IUE, 313 F.2d 231, 232-233 (C.A.6), cert. denied, 373 U.S. 936, 83 S.Ct. 1539, 10 L.Ed.2d 690. In Warrior & Gulf the Court made it clear, however, that arbitration should not be denied unless it may be said with positive assurance that the clause does not cover the dispute. “Doubts should be resolved in favor of coverage.” Warrior & Gulf, supra, 363 U.S. at 583, 80 S.Ct. at 1353. See also, United Steelworkers of America v. General Electric Co., D.C., 211 F.Supp. 562, aff’d 327 F.2d 853 (C.A.6).
It is not the province of the courts to determine issues of fact which bear upon the questions of whether a particular section of the contract has been violated. This is the function of the arbitrator. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403. It is therefore our opinion that the question of whether new jobs have been created is an issue of fact which bears upon the issue of whether there has been a contract violation as charged by the union.
We agree with the district court that the ambiguities in the language of the collective bargaining agreement should be resolved in favor of arbitrability. We cannot presume that the arbitrator will exceed his power under the contract.
Finally it is contended by the employer that certain grievances should be dismissed because the procedure set forth in the agreement was not followed. These grievances arise from the factual situation previously stated. We hold this also to be a matter for determination by the arbitrator.
In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 556-557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 the Court said:
“Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it. * * *
“Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. * * *
“Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. * * * ”
This court followed this procedure in Local No. 824, United Brotherhood Carpenters & Joiners of America v. Brunswick Corp., 342 F.2d 792 (C.A.6) and in United Steelworkers of America v. General Electric Co., 327 F.2d 853 (C.A. 6).
The decision of the lower court is affirmed.
. “SECTION 1. Should any difference or dispute arise between the Employer, the Union or the Employees covered by this Agreement there shall be no lockout, strike, work stoppage, slowdown, interruption or impeding of work or other act adversely affecting production on account of such difference or dispute, but the matter shall be settled in accordance with the procedure hereinafter provided.”
. “SECTION 4. Eor the purpose of this Agreement a ‘grievance’ shall be limited to a complaint which has not been settled as a result of the discussions required by Section 3 above and which involves the application, interpretation or alleged violation of the provisions of this Agreement or any other Agreement between the parties hereto.”
. A grievance procedure was established and provision made for arbitration if an unsatisfactory decision was reached. Powers of the arbitrator were limited as follows:
“SECTION VII (f) The jurisdiction of the arbitrator shall be strictly limited to deciding grievances which conform to the definition set forth in Section 4 of this Article. The Arbitrator shall have no authority to add to, subtract from, or in any way alter or amend the provisions of this Agreement nor to establish, change or determine the application of any wage rate nor to rule on any dispute regarding production standards nor to limit or impair any right that the Management Article in the Local Agreement * * * reserves to the Employer.”
. “ARTICLE V.
“WAGES
“SECTION 1. Hourly, incentive and piecework wage rates as well as all job classifications in effect as of the effective date of this Agreement, shall remain in effect for the duration of this Agreement.”
. “SECTION 2. [Article V] Management shall retain the right and responsibility of deciding the basis on which wages shall be paid, such as piecework, daywork, hourly rates or rates on an incentive basis.”
. “ARTICLE VII
“MANAGEMENT
“SECTION 2. The Employer reserves the right to introduce new or improved facilities or methods of production.”
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_respond2_7_5
|
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 "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).
STORER v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, et al.
No. 6798.
Circuit Court of Appeals, Sixth Circuit.
Dec. 6, 1935.
Tom Stahl, of Fremont, Ohio (Stahl, Stahl & Stahl, of Fremont, Ohio, on the brief), for appellant.
R. O. Holloway, of Toledo, Ohio (Holloway, Peppers & Romanoff, of Toledo, Ohio, on the brief), for appellees.
Before MOORMAN, HICKS, and ALLEN, Circuit Judges.
HICKS, Circuit Judge.
Amelda Baechle (now Storer) recovered a judgment in a common pleas court of Ohio against Norman Strohl and Isadore Lepley for damages for injuries received by her in an automobile collision. The-judgment became final as to Strohl and remained unsatisfied, whereupon appellant brought this action under the provisions of sections 9510 — 3 and 9510 — 4 of the General Code of Ohio against Strohl and the Ocean Accident & Guarantee Corporation, Limited (hereinafter called appellee), on an insurance policy issued by it. The case was transferred to the equity side of the docket.
On June 9, 1929, appellant and Norman Strohl went on a pleasure ride in a car owned by Elmer J. Strohl, Norman’s father. The car was driven by Norman with the permission and consent of his father. While young Strohl was parked at a gasoline station he observed another car, driven by Lepley, traveling west. In a short time he followed it, overtaking it 3.7 miles from the filling station. The collision occurred as Strohl attempted to pass upon the left side of Lepley’s car.
In the policy appellee agreed, subject to conditions therein contained, to pay all sums for which the assured should become liable as damages for personal bodily injuries caused as the result of the use of the automobile. Under a provision of the policy, Norman Strohl was an “additional assured,” and it further provided that the assured should co-operate with the insurance company in all matters which the company deemed necessary in the defense of any suit. Appellee defended upon the ground that Norman Strohl breached this condition of the policy not only in failing to cooperate in the defense of the suit, but in fraudulently colluding with appellant in its. commencement and prosecution.
Some time after the accident, appellant, at the instance of Elmer J. Strohl, and accompanied by her father and mother, Norman Strohl and Scott Wolf, an agent of appellee, called at the office of Stahl, Stahl & Stahl, attorneys, and discussed with them the matter of making a claim against Lepley. As a result of the conference, the attorneys advised that suit should be -brought not only against Lepley, but against Norman Strohl also. Suit was instituted and the basis of the claim was the combined and concurring negligence of Strohl in driving at an excessive rate of speed and of Lepley in turning to the left at the point of collision without extending his left hand or displaying his stop light.
Before the commencement of the suit Norman Strohl gave a written statement to appellee that at the time of the accident he was going at a rate of speed of 30 to 35 miles per hour. Appellee under its contract assumed the defense of Strohl, and while the first trial was in progress Strohl again represented to the attorneys furnished him that he was going at the above rate of speed. The significance of these statements is apparent when it is stated that under the statutes of Ohio, in effect at the time of the accident, a speed in excess of 35 miles per hour was prima facie evidence of negligence upon the part of Strohl. If he was not violating the statute, he had a substantial defense. After suit was brought, but before it was tried, Norman Strohl, who had previously been employed for a short time by Stahl, Stahl & Stahl, visited their office and discussed the case with one of the firm. About a week before the case was tried he went again to the office at the request of a member of the firm and answered questions then asked him concerning the accident. He never apprised appellee of these visits.
On the first day of the trial and before the afternoon recess appellant’s attorneys, following statutory procedure in Ohio, called Norman Strohl for cross-examination and examined him, but not concerning the matter of speed. His testimony was not concluded before the recess. During the recess John Stahl, of counsel for appellant, went into a room near the courtroom and while he was there Norman Strohl also entered the room, either voluntarily or by request of Stahl. The evidence is conflicting as to what occurred in this room. Strohl testified that Stahl motioned him to come in and suggested that he should testify that he was going from 40 to 45 miles an hour at the time of the accident and that any one would know that he was going faster than 35 miles an hour. This conversation between Stahl and Strohl was private and out of the presence of Strohl’s attorneys, who were in the courtroom at the time. After the recess Strohl resumed the witness stand, his cross-examination was continued, and in reply to questions of appellant’s counsel he testified that at the time of the accident he was going at a speed of between 35 and 40 miles per hour. Pie repeated this statement twice.
This testimony so directly contradicted his previous signed statement that his counsel naturally questioned him concerning it; whereupon he made an affidavit to the effect that John Stahl had insisted that he “change his story as to speed”; that, “He said for me to say I was going faster than thirty-five (35) miles per hour. When he called for me to testify on cross-examination, I testified that I was going thirty-five (35) to forty (40) miles per hour. My true speed was thirty (30) to thirty-five (35) miles per hour. If John Stahl wouldn’t have got me to change my story I would have testified to the truth as to speed. I read this statement and it is true.”
Thereupon, after adjournment for the day, Strohl and his attorney disclosed the entire matter to the trial judge, and on the next morning the attorney, by direction of the court, recalled Strohl, who then testified that he desired to correct his previous testimony with respect to speed, that he was only going from 30 to 35 miles per hour. He explained that the conversation with John Stahl during the afternoon recess had induced his previous testimony and he related that conversation substantially as it is above set forth and further testified that the facts contained in his affidavit were true. The affidavit was received in evidence, whereupon the court entered a mistrial.
Stahl at first made what is styled a “professional statement” to the court that Strohl came into the room voluntarily; that there was a general conversation touching his testimony, and that he stated to Strohl that his statement on the witness stand hot only differed from the written statement made to appellant’s attorneys from what he, Strohl, had told him in the office, but denied that he suggested to Strohl to testify to any particular thing or to change his testimony. Stahl was evidently confused in substantial portions of his statement, since Strohl had not up to that time given any testimony concerning speed. He testified at the hearing of the present controversy that Strohl came into the room, that something was said about his testimony, and that he, Stahl, remarked in substance that the jury would not be impressed with testimony that Strohl caught up with some one in 3% miles when he was five to seven minutes behind him and going 35 miles an hour. He testified on cross-examination that in his talk with Strohl he stated that if he, Strohl, stopped at the gas station five or ten minutes and Lepley was only going at the rate of 20 miles per hour the jury would not be impressed with testimony that he, Strohl, was traveling at the rate of 30 to 35 miles per hour.
Upon a second trial in the common pleas court, Strohl was again called by appellant for cross-examination and testified that 50 feet from the point of the collision he was going at the rate of 30 to 35 miles per hour. After appellant had rested her case, defendant Lepley called Strohl for cross-examination. He was shown his affidavit executed at the previous trial and stated that he had sworn therein that he had testified falsely in that trial; that he was in fact going between 30 and 35 miles per hour and that his former testimony that he was going 35 to 40 miles per hour was at the suggestion of John Stahl. Thereupon the affidavit was again offered in evidence by counsel for Lepley and was received.
The above narrative of the controlling facts is in substantial accord with the findings made by the District Court. The court sustained appellee’s contention and dismissed the petition. We think the decree was right.
The co-operation clause was both material and important. Its purpose was twofold: (1) To require the insured to aid in preparing the case for trial and in making proper defense; and (2) to prevent collusion between the insured and a friendly claimant. “When the condition was broken, the policy was at an end, if the insurer so elected.” Coleman v. New Amsterdam Cas. Co., 247 N.Y. 271, 160 N.E. 367, 369, 72 A.L.R. 1443. See, also, Royal Indemnity Co. v. Morris, 37 F.(2d) 90, 93 (C.C.A.9).
Whether Strohl failed to co-operate was to be determined by proper inferences to be drawn from the facts, and we think that the decided weight of the evidence, considered in the aggregate, is that he not only failed, but that he purposely intended through false testimony to aid appellant in recovering a judgment against himself, eventually to be paid by appellee. His friendly relationship with appellant, his private conferences with her attorneys, both before and at the first trial, and his repeated admissions under oath that he had testified falsely upon the first trial concerning the vital issue in the case, leave little room for any other conclusion. See Ocean Accident & Guarantee Corporation v. Lucas, 74 F.(2d) 115, 117, 98 A.L.R. 1461 (C.C.A.6); Ohrbach v. Preferred Accident Ins. Co. of New York, 227 App.Div. 311, 237 N.Y.S. 494; Solomon v. Preferred Accident Ins. Co. of New York, 132 Misc. 134, 229 N.Y.S. 257. It matters not whether the purpose originated in his own mind or was induced by another, the effect was the same — a breach in a condition of the policy. The overwhelming preponderance of the evidence is against any suggestion that Strohl’s testimony to the effect that he was driving 35 or 40 miles per hour was truthful or that from lapse of memory or other cause he was honestly mistaken.
We may assume that Strohl testified truthfully upon the second trial, but the condition already broken was not thereby restored. Nor can it be said that appellee then had the benefit of the truth because Strohl was not only confronted with his own contradictory aifidavit, .but with his repeated confessions that he had sworn falsely upon the first trial, and the verdict indicated that his credibility was destroyed. It is manifest that Norman Strohl would be repulsed if he were seeking indemnity and appellant has acquired no higher right. Gen. Code of Ohio, §§ 9510-3 and 9510-4. Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St. 633, 641, 151 N.E. 718.
Other assignments of error have been considered, and, being found without merit, are overruled.
Decree affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_rtcouns
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's right to counsel was violated (for some reason other than inadequate counsel)?" 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".
CARLSTROM et al. v. AGRICULTURAL INS. CO. et al.
No. 12275.
United States Court of Appeals Ninth Circuit.
Jan. 30, 1950.
Neil Cunningham, San Francisco, Cal., for appellants.
Thornton & Taylor, San Francisco, Cal., for appellees.
Before STEPHENS, HEALY, and BONE, Circuit Judges.
HEALY, Circuit Judge.
The question in this case is whether the trial court was in error in refusing to allow interest prior to judgment on an amount awarded appellant in a suit on a group of fire insurance policies. The statute invoked is § 3287 of the California Civil Code reading in part: “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day * * *.”
The property insured (99% of which suffered destruction in the fire) had been purchased by appellant as war surplus. It consisted of lumber the major portion of which was boards nailed together in the form of troughs from 26 to 43 inches long. There was besides a substantial quantity of slats, or single boards, of approximately the same length as the troughs. On the sale the government invoice estimated the total quantity at 4,470,408 board feet. The verified proof of loss timely served by appellant represented his claim as approximately 5,000,000 board feet, valued at $125,000. The insurers made no question of liability, but admitted a loss of only $14,320.
Apparently no appraisal was had as contemplated by the policies; and the insured ultimately brought suit alleging quantity and value in conformity with his proof of loss. On the trial the court found that the quantity destroyed was 3,930,704 board feet, this quantity being arrived at by deducting 500,000 board feet found to- have been used in the government’s box factory prior to sale, plus 1% representative of the total remaining after the fire. The amount awarded appellant was $31,153.52, judgment being entered for this sum with interest from the date of judgment only.
The policies, drafted in the standard form prescribed by the Insurance Code of California, provided that loss should be payable within 30 days after ascertainment of the amount either by agreement or by appraisement; but in the event such ascertainment was not had within 60 days after receipt of the insured’s preliminary proof of loss, then the loss was payable 90 days after such receipt. Here the 90-day period expired March 4, 1945. As already indicated, the sole question before us is whether interest on the sum awarded should have •been allowed from that date.
The latest decision of the California Supreme Court relative to the applicability of § 3287, supra, to insurance contracts of this type, is Koyer v. Detroit Fire & Marine Ins. Co., 9 Cal.2d 336, 70 P.2d 927, where the court approved the allowance of interest from the close of the 90-day period. It said 9 Cal.2d at page 345, 70 P.2d at page 931: “It would seem to admit of no doubt that an ordinary fire or earthquake loss is adjusted by calculation, whether it be a total or a partial loss. Preliminary proofs of loss are calculations of the loss, as are also the estimates of appraisers, and these are the methods of adjustment contemplated by the parties and stipulated in the policies. Resort may be had to court action only in the event the calculations of the parties or those of their appraisers are not in agreement. The amount awarded plaintiff by the jury conformed closely to the amount claimed, in the proofs of loss.” [Emphasis supplied.] As was the situation in the case before us, the Court observed that there was available to the parties before suit all of the knowledge and all of the means of knowledge of the extent of the loss which was available to them or to the court or jury upon the trial. “The contracts of insurance”, said the court, “prefer settlement by estimate or calculation of loss to the determination of the question in court. Where the parties have agreed upon the use of that method in fixing the amount of the insurers’ liability and have bound themselves to settle upon that basis, they cannot consistently ask the court to declare the method they have adopted as an important element of their contract to be inadequate and uncertain and insist that trial of the issue in court is necessary for a correct and just determination.”
Whether the sentence we have italicized was intended as the statement of a condition essential to an award of interest is substantially the nubbin of .the dispute between the parties to this appeal. Doubt as to the significance of the Court’s observation is more or less dissipated by a study of certain of the authorities cited by the Court in support of its conclusion that the loss was capable of being made certain by calculation, namely, Anselmo v. Sebastiani, 219 Cal. 292, 26 P.2d 1; Pacific Coast Adjustment Bureau v. Indemnity Ins. Co., 115 Cal. App. 583, 2 P.2d 218, and Jacobs v. Farmers’ Mutual Fire Ins. Co., 5 Cal.App.2d 1, 41 P.2d 960. These cases either hold or broadly intimate that if the amount owing is calculable from the proofs of loss rendered by the insured, and if his claim is found by the court to have been substantially correct, then the damages are capable of being made certain by calculation within the intendment of the statute. We feel constrained, therefore, to adopt the insurers’ interpretation of the Koyer decision.
Affirmed.
Question: Did the court rule that the defendant's right to counsel was violated (for some reason other than inadequate counsel)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_treat
|
D
|
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.
Esteban LOPEZ, Plaintiff-Appellant, v. A/S D/S SVENDBORG and D/S of 1912 A/S, Defendants-Appellees.
No. 899, Docket 78-7046.
United States Court of Appeals, Second Circuit.
Argued May 25, 1978.
Decided July 24, 1978.
Morris Cizner, New York City (Zimmerman &.Zimmerman, New York City, of counsel), for plaintiff-appellant.
James M. Hazen, New York City (William P. Kain, Jr., Haight, Gardner, Poor & Havens, New York City), for defendants appellees.
Before OAKES, Circuit Judge, and MEHRTENS and BLUMENFELD, District Judges.
Senior United States District Judge for the Southern District of Florida, sitting by designation.
Senior United States District Judge for the District of Connecticut, sitting by designation.
BLUMENFELD, District Judge:
This is another case which calls for the application of the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950. The plaintiff is a longshoreman who was accidentally injured while at work discharging cargo in the bottom of a hold on the M/S TREIN MAERSK, a vessel owned by the defendants A/S D/S Svend-borg and D/S of 1912 A/S. He brought an action in negligence against the shipowner which was tried for two days before Judge Richard Owen and a jury. After the plaintiff rested, the trial judge granted the defendants’ “motion to dismiss” for failure to prove a prima facie case of liability against the defendants. The jury was discharged without reaching a verdict. No findings were made as called for by Rule 41(b), Fed.R.Civ.P. The parties have treated this procedural posture of the case as if the court had granted a defendant’s motion for a directed verdict under Rule 50(a). Since this was a trial to a jury, we are of the view that it is appropriate to consider the case on that basis.
At issue on this appeal is whether there was evidence of negligence by the defendant shipowner “of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions....” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). See also Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 742-43 (2d Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976). In making that assessment we “must view the evidence and all inferences most favorably to the party against whom the motion is made,” O’Connor v. Pennsylvania R.R. Co., 308 F.2d 911, 914 (2d Cir. 1962). “The non-moving party is given the benefit of all reasonable inferences from the evidence, and evidence unfavorable to it may be considered only if that evidence stands uncon-tradicted and unimpeached.” Bigelow v. Agway, Inc., 506 F.2d 551, 554 (2d Cir. 1974).
I.
There was evidence from which the jury could have found the following facts: the plaintiff, a longshoreman employed by Universal Terminal and Stevedoring Co. as a hold-man, was discharging cargo from the square of the lower hold of Hatch No. 4 of the defendants’ vessel on February 28,1973, when he sustained an accidental injury to his back.
Lopez and the longshore gang of which he was a member had boarded the ship at 8:00 a. m. and were directed to begin at No. 4 hold, from which the hatch cover had already been removed. Loose cartons on top of the stow, held in place by the coam-ing, were quickly removed. The cargo below those cartons had been palletized. Even though the cargo may have been properly stowed before making a long voyage to New York from the Orient, it had shifted, apparently because of heavy seas. Not only had it shifted, but the cargo was in a considerably damaged condition. Packages had been damaged and kegs of bolts had broken open. Loose bolts were heavily scattered throughout the remainder of the cargo. Some bolts had sifted down as far as the floor of the hold through spaces created when the cargo shifted. The loose bolts scattered about made the hold a dangerous place for the longshoremen engaged in removing the cargo.
The condition of the stow in hold No. 4 was called to the attention of an officer of the ship and the stevedore’s foreman by the hatch boss. Both looked down into the hold and observed it. The hatch boss asked, “What are you going to do with this mess?” In the presence of the ship’s officer, he was told, “Keep working, the cargo got to come out of the ship, tell your men to be careful; keep working.” Later that morning, after most of the cargo in the square of hold No. 4 had been removed, the plaintiff and a coworker were lifting a case from the floor of the square to a pallet from which it had fallen, when the plaintiff stepped on a loose bolt which caused him to slip and subject the muscles of his back to a sudden and unexpected strain, resulting in the injuries for which he sued.
II.
The reasons Judge Owen gave for his decision to grant the defendants’ motion to dismiss the complaint may be extracted from the statements he made during colloquy with counsel. More than one reason was given.
(1) First he considered the conduct of the plaintiff. He focused his attention upon the duty of the plaintiff with respect to the risk of injury.
“It seems to me absolutely clear on this record, without argument, that there is no jury question here. Longshoremen, since time immemorial have had to work under circumstances where there is litter, there is debris, there are turnbuckles, there are bales of wire, there are pieces of dunnage broken and unbroken, lying about areas in which they are working. And they are expected to cope with this kind of thing lying around the areas in which they are working.” Tr. 226.
(2) Second, he considered the conduct of the defendants. Proof of the risk of injury to the plaintiff and of how it had been created did not pose any problem. That was evident from his application of what he conceived to be the law to the facts. Quoting from Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861, 862 (2d Cir. 1977), he said,
“if you go with this case on the Ruffino test,... the law there is, ‘Before liability can attach for [an] independently created danger,’ which is here arguably heavy seas, ‘the owner must have knowledge of its existence and [the] opportunity to alleviate it.’ There is no question on this record the jury can find the owner knew of its existence.” Tr. 227.
He continued:
“I just don’t see how there was an opportunity here on [s/c] the owner of the vessel to alleviate this condition, even assuming that you find it to be an independently created danger..
“.. It is certainly reasonable for the vessel to assume that under these circumstances, experienced longshoremen would be able to avoid stepping on a bolt and taking a spill.” Tr. 227-28.
By this juxtaposition of comments on the duty of the shipowner and the duty upon the plaintiff it appears that the Judge may have been adopting the harsh rule that contributory negligence is a complete bar to recovery. In admiralty contributory negligence may reduce, but does not bar, recovery for personal injuries. Under the admiralty rule the plaintiff’s recovery is reduced in proportion to his own fault. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09, 74 S.Ct. 202, 98 L.Ed. 143 (1953). By its adoption of the 1972 Amendments to LHWCA, Congress intended that comparative negligence would apply to longshoremen’s actions, and that assumption of risk would not. H.R.Rep.No.92-1441, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 4698, 4705. The ruling of the court was in error insofar as it was based on a conclusion that the plaintiff was barred from recovery because he was guilty of contributory negligence or had assumed the risk of his injuries. Whether, and to what extent, any contributory negligence of the plaintiff should reduce his damages must be left to the jury for its determination.
Having considered whether the plaintiff is entitled to be compensated, we turn next to the question of whether, in view of the fact that the shipowner knew of the dangerous conditions in the hold which existed when it was turned over to the stevedore, the shipowner ought to pay. There was evidence from which the jury could conclude that the defendant was negligent.
III.
In defining the parameters of the case before us we heed the opening phrase of Judge Friendly’s dissenting opinion in Can-izzo v. Farrell Lines, Inc., 579 F.2d 682 at 687 (2d Cir. 1978):
“Courts must be exceedingly careful in defining the contours of the longshoreman’s action for negligence against the ship, which was preserved by § 905(b) of the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act...
The purposes of Congress in enacting the 1972 Amendments to LHWCA have been so perceptively enlarged upon in other cases that additional broad analysis here would be redundant.
Two principles are settled. In eliminating the absolute liability of a shipowner for unseaworthiness, the 1972 Amendments to LHWCA, 33 U.S.C. §§ 901-950, Congress intended that a vessel would be liable only for its own failure to use reasonable care, Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 840 (2d Cir. 1977), which would be determined in accordance with land-based principles of negligence, Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976). See Ruffino v. Scindia Steam Navigation Co., supra, 559 F.2d at 862.
As the trial judge correctly decided, there was evidence that the defendant knew of the risk of injury from the loose bolts to anyone working in hold No. 4. He was, nevertheless, persuaded to rule that no jury could properly find that the defendant was negligent. His recorded remarks disclose that he relied expressly upon a dictum in Ruffino v. Scindia Steam Navigation Co., supra, 559 F.2d at 862: “Before liability can attach for [an] independently created danger, the owner must have knowledge of its existence and [the] opportunity to alleviate it.” A fuller reading of Ruffino indicates that the “opportunity to alleviate” phrase is merely a timeliness gloss on the requirement of notice of the dangerous condition, meaning only that the defendant must have notice of it in sufficient time to take action to remedy it. In other words, “The mere existence of a defect or danger is not enough to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably con-elude that due care would have discovered it.” W. Prosser, Law of Torts § 61 at 393 (4th ed. 1971). The cases cited in Ruffino do not purport to give any content to “opportunity to alleviate” other than knowledge of the risk in time enough to take protective measures against the risk of injury.
We follow Napoli v. Hellenic Lines, Ltd., supra, which held that where there was sufficient evidence of knowledge by the shipowner of “obvious dangers which it should reasonably anticipate that the longshoremen would be unable to avoid,” the case should have gone to the jury under § 343A of the Restatement (Second) of Torts. 536 F.2d at 509. In pertinent part, § 343A(l) states:
“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 848A(1) (1965).
This deviation from the general rule that reasonable care requires nothing more than a warning of the danger is a recognition that there are cases
“where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required.. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.” W. Prosser, supra, § 61 at 394-95, quoted with approval in Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143, 1147 (D.Md.1975), aff’d, 540 F.2d 757 (4th Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977).
Here, as in Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364 (2d that a vessel would be liable only for its own failurd Cir. 1978), there was evidence of direct knowledge of the unsafe condition before the injury occurred and that the ship’s officer knew that nothing was going to be done to alleviate it. What was said there is squarely applicable, at 367: “But if there is again evidence that a ship’s officer, after being notified of the open and obvious danger of insufficient dunnage for a slippery cargo, had the men keep working or joined in the stevedore’s decision to do so, then there would be a jury question.” (Emphasis added) In this case the evidence “was enough to allow a jury to conclude that the ship’s officer approved and joined in the direction that the men keep working..” Id., at 367. The plaintiff was not instructed as to what he should do about the “mess” but was apparently allowed to use his own judgment. The circumstance that the risk of harm was not recognized until the removal of the cargo was in progress is no basis for failure to take precautionary methods against it after the dangerous condition became known. Indeed, the Restatement (Second) of Torts § 413 requires the employer of an independent contractor to use reasonable care to provide for precautions where the work to be done should be recognized “as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken..” Comment d. states:
“Although the employer at the time he lets the contract has no reason to anticipate that conditions will arise which require special precautions to be taken, if in fact such conditions do arise and he knows or should know of them, he is then required to act in the manner required by the rule stated in this Section.”
The fact that differences frequently arise as to whose duty it is to take precautionary measures in cargo removal operations indicates the applicability of § 413, for as Comment b. explains:
“This Section is concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, „ against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions.”
Under the foregoing principles the jury could have found that the defendant was negligent toward the plaintiff.
IV.
The fact that the stevedore shared in the decision to continue working did not exonerate the shipowner, and there is no reason, as a matter of fundamental tort law, why it should not be held liable in damages for its own negligence. It is well established tort law that “an actor whose negligence has set a dangerous force in motion is not saved from liability for harm it has caused to innocent persons solely because another has negligently failed to take action that would have avoided this.” Petition of Kinsman Transit Co., 338 F.2d 708, 719 (2d Cir. 1964), cert. denied sub nom. Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965). Thus, even if the stevedore was negligent in failing to eliminate the dangerous condition, that would not be a defense for the shipowner. Moreover, in Dodge v. Mitsui Shintaku Ginko K.K. Tokyo, 528 F.2d 669, 674 (9th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976), it was expressly held “that a longshoreman who has been injured by the concurring negligence of his employer stevedore and the vessel owner can recover the total of his damages from the vessel owner.” We have also rejected a contention by a shipowner that an injured longshoreman could not recover damages against it unless he proved that the shipowner was solely responsible for his injury, stating:
“First, the draftsmen of section 5(b), 33 U.S.C. § 905(b), could easily have inserted the word ‘sole’ so that the clause would have read ‘caused by the “sole” negligence of the vessel.’ Nothing has been called to our attention to indicate such intention. Second, Congress would hardly have given the ship so little incentive to avoid being negligent toward its longshoremen invitees. Third, the scheme of the Act is to provide workmen’s compensation for a longshoreman from his own employer, but with a right to sue the ship for negligence. We cannot agree that some negligence by the employer is enough to cut off the injured longshoreman’s protected right to sue the ship for its own negligence. Of course, if the negligence was solely that of the stevedore, the ship would have been found neither negligent nor liable.” Landon v. Lief Hoegh & Co., 521 F.2d 756, 763 (2d Cir. 1975) (footnote omitted), cert. denied sub nom. A/S Arcadia v. Gulf Insurance Co., 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976).
After our decision in Landon, the court in Dodge, supra, 528 F.2d at 672, in taking the view we expressed, quoted with approval from Santino v. Liberian Distance Transports, Inc., 405 F.Supp. 34, 35 (W.D.Wash. 1975):
“ ‘On its face it seems inequitable for a shipowner to be liable to an injured longshoreman for all of the latter’s damages if the negligence of the shipowner was not the sole proximate cause of the injuries but rather concurred with the negligence of the stevedore employer. Particularly would this be true if the fault of the stevedore employer were much greater than that of the shipowner. Nevertheless, since the Longshoremen’s and Harbor Workers’ Act is a creature of Congress, it would in this Court’s opinion be better for Congress to effect the elimination of any inequity than to have the various District Courts seek to remove that inequity by means which would unavoidably vary from district to district.
“ ‘Permitting a shipowner to plead the negligence of the stevedore as an affirmative defense would not eliminate inequity. It would simply shift the inequity from shipowner to injured longshoreman. He would be restricted in his recovery as against the shipowner without acquiring any offsetting rights under the Act as against his stevedore employer.’ (emphasis added).”
And, more recently, the Fifth Circuit adhered to the rationale of Dodge and Landon in upholding a judgment for a longshoreman against a vessel owner for negligence in a terse and vigorous opinion by Judge Rubin, who considered cases from other circuits with contrary holdings. Samuel v. Empresa Lineas Maritimas Argentinas, 573 F.2d 884 (5th Cir. 1978). The rule that the shipowner cannot use the negligence of the stevedore as a defense to a negligence action against it brought by the injured longshoreman, is strengthened by its corollary that the shipowner cannot assert the stevedore’s negligence to defeat the stevedore’s right to reimbursement of compensation payments out of any damages the longshoreman may recover. In Pope & Talbot, Inc. v. Hawn, supra, the Court held that even though the stevedore was concurrently negligent, it could still recover its compensation lien in full, noting, 346 U.S. at 412, 74 S.Ct. at 206, that “reduction of [the shipowner’s] liability at the expense of [the stevedore] would be the substantial equivalent of contribution which we declined to require in the Halcyon case.” We have recently held that Pope & Talbot is still good law. Landon, supra, 521 F.2d at 760.
V.
Despite the existence of evidence from which the jury could have found that the condition which constituted the risk of injury to the plaintiff was attributable to the ship alone, the defendant contends that it should not be held liable for his injuries. It argues that it was reasonable as a matter of law for the shipowner to do nothing to remedy the condition because it could rely upon the stevedore to take necessary precautionary measures. A vigorous dissent in Lubrano, supra, contended for that view on the ground that the stevedore was an independent contractor to whom control over the premises had been relinquished. Support for that view is also found in Judge Friendly’s dissenting opinion in Canizzo, supra, at 688 of 579 F.2d, where he says:
“In dealing with § 905(b), courts would do better to consider the policies that actuated Congress in adopting the 1972 Amendments. In my view Congress did not mean to subject the ship to liability for every dangerous condition known or knowable to it when it had a right to assume that this would be remedied by the employer, as § 941(a) requires.”
The recent decision in Cox v. Flota Mer-cante Grancolombiana, S.A., 577 F.2d 798, (2d Cir. 1978), reversed a jury verdict in favor of Cox, a longshoreman, against the ship on the ground that it was the stevedore’s duty alone as an independent contractor to remedy unsafe conditions. The Cox decision was handed down “in the face of known disagreement by a majority of [the] panel” in Canizzo, supra, which upheld a jury verdict for a longshoreman against a ship and included a comment on Cox’s contrary view.
This case also will fall within what seems to be rapidly becoming an overly complex and unpredictable body of law. Because of the different views as to whether an employer’s failure to remedy a dangerous condition is a defense to a suit by the longshoreman against a ship for its own negligence, we feel that it may not be amiss to explain why we do not agree that the failure of the stevedore to remove or provide protection against the conditions created by the shipowner relieves the latter of liability for injuries to a longshoreman caused by those conditions.
To avoid the risk of being misunderstood, we do not say that a shipowner should be held vicariously liable for the tortious acts of an independent contractor, or his servants. But the shield against vicarious liability for the negligence of an independent contractor does not also shield the shipowner from liability for its own negligence. Although § 905(b) may be construed to “demonstrate that.. the major responsibility for the proper and safe conduct of the work was to be borne by the stevedore,” Brown v. Ivarans Rederi A/S, 545 F.2d 854, 860 (3d Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Ramirez v. Toko Kaiun K. K., 385 F.Supp. 644, 653 (N.D.Cal.1974), or that “the primary duty to provide a safe place to work is on the stevedore,” Lucas v. “Brinknes” Schiffahrts Ges., 379 F.Supp. 759, 768 (E.D.Pa.1974), neither “major responsibility” nor “primary duty” may be read as “sole responsibility.” See Landon, supra, 521 F.2d at 762-63.
In rejecting the argument of a shipowner that it should not be held liable unless its negligence was the sole cause of the damages, we noted in Landon, id. at 763: “Congress would hardly have given the ship so little incentive to avoid being negligent toward its longshoremen invitees.” The basis for an assumption that prevention can be maximized by shifting the liability to one already liable, and only for a lesser amount, is doubtful.
When Congress relieved the shipowner of the no-fault concept of seaworthiness, it preserved the liability for negligence, explaining, H.R.Rep.No.92-1441, supra, at 4703, “This would place vessels in the same position, insofar as third party liability is concerned, as land-based third parties in non-maritime pursuits.” And, the House Report also noted, id. at 4704, “nothing in this bill is intended to derogate from the vessel’s responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.”
Furthermore, Congress also expressly refused to treat vessels as joint employers of longshoremen:
“This would result in restricting the vessel’s liability in all cases to compensation and other benefits payable under the Act. The Committee believes that where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured.” Id. at 4702.
It could not be clearer that Congress intended shipowners to be liable for their own negligence.
Defendant contends that it cannot be held liable for negligence toward plaintiff because it was entitled to rely on the stevedore’s primary duty to alleviate any condition dangerous to its employees. One difficulty with this argument is that the right to rely is based on an agreement between the shipowner and the stevedore. Rules regulating the conduct of persons toward others must be distinguished from agreements governing organization of the work.
The particular ingredient of the independent contractor relationship from which the defendant seeks to forge a shield against liability for its own negligence is said to be the independent contractor’s control over the work and the place where the work is done. It is self-evident that if the shipowner relinquishes control of an unsafe place to work to the sole control of the stevedore, that relinquishment comes about because of an agreement it makes with the stevedore. The parties may be careful in drawing their contract to provide an appearance of independence or control of the area where the work is to be done. But to enable a shipowner to escape liability by entering an agreement with the stevedore would contravene Congress’ intention.
The 1972 amendments did not modify § 905(a) by which Congress had explicitly made the employers absolutely liable for compensation “exclusive and in place of all other liability... to the employee.” See Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir. 1975), cert. denied sub nom. American Marine Corp. v. Louviere, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90 (1976). Section 905(b) provides from the other side that in the case of injury to a covered employee, “the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.” (Emphasis added)
The intent of Congress in outlawing such agreements is spelled out in H.R.Rep.No. 92-1441, supra, at 4704-05:
“Furthermore, unless such hold-harmless, indemnity or contribution agreements are prohibited as a matter of public policy, vessels by their superior economic strength could circumvent and nullify the provisions of Section 5 of the Act [33 U.S.C. § 905] by requiring indemnification from a covered employer for employee injuries.
“Accordingly, the bill expressly prohibits such recovery, whether based on an implied or express warranty. It is the Committee’s intention to prohibit such recovery under any theory including, without limitation, theories based on contract or toriJ!
“Under the proposed amendments the vessel may not by contractual agreement or otherwise require the employer to indemnify it, in whole or in part, for such damages.” (Emphasis added)
In Zapico v. Bucyrus-Erie Co., 579 F.2d 714 at 721 (2d Cir. 1978), Judge Friendly observed that the legislative history “does indicate that § 905 was meant to prevent Ryan indemnity actions by vessels.... ” And he stated, id.: “The shipowners got a quid pro quo for the loss of their indemnity rights.” The quid pro quo was the mitigation of the harsh no-fault doctrine of seaworthiness. See S. S. Seatrain Louisiana v. California Stevedore & Ballast Co., 424 F.Supp. 180, 182-83 (N.D.Cal.1976). Indeed, the House Report states, H.R.Rep. No.92-1441, supra, at 4704: “The Committee also believes that the doctrine of the Ryan case.. is no longer appropriate...
To permit a shipowner to negotiate with the stevedore by “contractual agreement or otherwise” for cargo removal operations so as to relieve it of liability to the longshoreman for damages caused by its own negligence, on the ground that the shipowner had a right to rely on the stevedore to remove the cause, would be to restore the kind of right to indemnity which § 905(b) eliminates. It seems to us that on any fair assessment of the legislative scheme in § 905(b) the implication of a right of exoneration in the shipowner from an employer based on the “independent contractor” relationship would be alien to Congress’ intention. The rule regarding indemnity agreements, while not directly applicable to the question of whether the shipowner can be found negligent, is a crucial part of the legislative scheme. To maintain the integrity of that scheme, we should not adopt a rule as to negligence that is so inconsistent with the indemnity prohibition as to undermine a principle which Congress has established as fundamental. As stated in an analogous context in Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972): “To permit [defendant] to proceed on [an independent contractor] theory here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe the Act permits such a result.” There is no warrant for a contention that a right of indemnity arising out of the relationship between an employer and its independent contractor is intrinsically immutable. Congress has excised that incident of the relationship “as a matter of public policy” in cases covered by § 905(b).
As an abstract matter an argument can be made that after turning over a job of work to be done aboard its ship to a stevedore a shipowner ought not to be liable for damages suffered by a longshoreman for pre-existing dangerous conditions it has created, or negligently failed to correct. The argument advanced in some of the cases, as noted in the dissenting opinion in Canizzo, supra, is that when dangerous working conditions arise the shipowner may justifiably rely on the independent contractors to “take care of the problem as they were bound to do.” Id., at 690. Even if it might be said that there can be such a duty to the shipowner, despite an express redaction in § 905(b) of any remedy for its breach, that would not relieve the ship of its own duty to exercise reasonable care. But a provision in a law which has been enacted by Congress must be distinguished from one which might have been but was not. Our concern is not to assess the fairness of a legislative scheme. Even if we were permitted to do so, we could not say that there is no rational, fair basis for holding a shipowner liable for its own negligence, instead of singling out the stevedore who did not create the risk, to be solely responsible.
Whether due care has been exercised in any negligence case depends on what care has been taken — not on who has been hired to take it. Since the work was permitted to go forward under conditions of danger known both to the ship and to the stevedore, the rule of § 343A(1) should have been applied by the jury to the facts of the case as they might find them to be in order to determine whether the defendant is liable for damages. “Should the jury be persuaded... and find that the shipowner was negligent in not correcting the open and obvious danger but that the plaintiff was contributorily negligent, it would apply the doctrine of comparative negligence to reduce the shipowner’s liability proportionately.” Napoli, supra, 536 F.2d at 509.
The ruling of the court below took from the jury both the issue of the defendant’s responsibility for the unsafe condition of the place where the plaintiff was required to work, and the issue of to what degree, if any, his own conduct in the face of the known danger should reduce his recovery. As we have indicated above, both issues should have been left to the jury. Accordingly, we reverse and remand for further proceedings not inconsistent herewith.
. [T]he Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee’s own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of ‘assumption of risk’ in an action by an injured employee shall also be applicable.”
. E. g., Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861 (2d Cir. 1977); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2d Cir. 1977).
. Immediately after quoting from Ruffino he continued:
“There is no question on this record the jury can find the owner knew of its existence. “But where I come up against a wall is the opportunity to alleviate it. I don’t see what the shipowner could have been expected to do here in terms of curing this, because until you get down to the bottom of the cargo, you don’t know whether you are going to find some bolts lying there, and first you’ve got to get the cargo out, and then sweep it up.
“I just don’t see how there was an opportunity here on [sic ] the owner of the vessel to alleviate this condition....” Tr. 227.
. Restatement (Second) of Torts, § 413 reads: “One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.”
. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952).
. A different view of Congressional awareness of what it was doing was expressed in Lubra-no: “The ultimate decision reached by Congress was not made lightly. Instead, the result reflects a delicate balancing by Congress of the interests of the various parties involved. The
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_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
THOMAS v. HUNTER, Warden.
No. 3217.
Circuit Court of Appeals, Tenth Circuit.
March 1, 1946.
George Powers, of Wichita, Kan., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAII, Circuit Judges.
HUXMAN, Circuit Judge.
Petitioner, Richard J. Thomas, has appealed from the judgment of the trial court denying his petition for discharge from the custody of the respondent, under a writ of habeas corpus.
On October 16, 1941, while petitioner was out on parole or conditional release under a prior conviction, he was arrested and taken into custody by the United States Marshal of the Eastern District of Missouri. He was charged in an indictment filed November 13, 1941, with violation of the Dyer Act, 18 U.S.C.A. § 408. On November 21, 1941, and again on January 8, 1942, he attempted to escape from confinement while in the custody of the Marshal. He was indicted in separate indictments for each of these attempted escapes. He pleaded guilty to the charge under the Dyer Act and was tried and found guilty by a jury in each of the attempted escape cases. He was sentenced to serve a term of four years on the Dyer Act violation and to an additional sentence of five years each on the two escape charges. These two sentences were made to run consecutively with each other, and also consecutively with the sentence under the Dyer Act conviction. In all, petitioner was sentenced to a total term of fourteen years.
In his petition for the writ of habeas corpus and on his appeal before this court, petitioner makes two contentions, first, that the escape sentences were not in conformity with the statutory provisions of the Escape Act, 18 U.S.C.A. § 753h, and were therefore void, and that having served the sentence of four years under the Dyer Act charge, he is entitled to release; and, second, that he was denied the right to counsel at the time the verdict of the jury was returned into court and at the time of the sentence, and that the sentences therefore are void.
18 U.S.C.A. § 753h provides: “Any person committed to the custody of the Attorney General or his authorized representative, or who is confined in any penal or correctional institution pursuant to the direction of the Attorney General, or who is in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or who is in custody of an officer of the United States pursuant to lawful arrest, who escapes or attempts to escape from such custody or institution, shall be guilty of an offense. * * * The sentence imposed hereunder shall be in addition to and independent of any sentence imposed in the case in connection with which such person is held in custody at the time of such escape or attempt to escape. If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape.”
The requirement in the first part of the above section, that an additional sentence must be imposed for an escape or attempted escape, does not require that the convicted person be compelled to serve a greater number of years than the number of years imposed for the main offense. A sentence under one conviction is in addition to a sentence under another conviction, if it is a separate and complete sentence. Rutledge v. United States, 5 Cir., 146 F.2d 199. That it runs concurrently with a sentence for the same number of years under a former conviction makes it nonetheless an additional sentence, because if for any reason the convicted person is excused from serving the first sentence, he must nevertheless serve the second sentence. The latter portion of the Act provides that: “If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape.” It is upon this provision in the statute that petitioner relies to sustain his first contention.
He argues that at the time of his two attempted escapes he was under sentence for the offense which he had committed prior to the commission of the Dyer Act offense and for which at the time of his arrest he was out on parole. He contends that the court therefore was required to make the two escape sentences begin to run from the completion of his original sentence, rather than from the completion of the sentence for the Dyer Act violation.
In Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808, the Supreme Court held that where one who was on parole or probation committed another offense for which he was arrested and sentenced, while he was incarcerated under the latter sentence he was imprisoned only thereunder, and the service of the original sentence was interrupted and the running of such sentence began again only at the completion of the new sentence. It was held that during the time he was serving the new sentence he was no longer in either actual or constructive custody under the first sentence. From this it follows that when appellant was arrested for the Dyer Act violation, the original sentence was interrupted and suspended. The original sentence being suspended, he was not under that sentence when he broke jail. Petitioner not having been under the original sentence at the time he broke jail, it follows that when the court passed the sentences for the jail break, the provision of the statute which he seeks to invoke did not apply to him.
Furthermore, we think the proviso upon which petitioner relies means that where one is confined and actually serving a prior sentence when he escapes from custody, then the sentence for such escape must be fixed with relation to the expiration date of the prior • sentence or with reference to the date on which one is thereafter legally released from confinement thereunder. It has no application where one is out on parole when he escapes from custody. The words of the statute are: “The sentence imposed hereunder shall begin on expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape * * If petitioner’s construction of the statutory proviso were correct, then the phrases “or upon legal release” and “under which such person is held at the time of such escape” would be meaningless and would be mere surplusage. If one is out on parole he is not held under the sentence.
Petitioner alleged that at the trial on the escape charges his “constitutional right to have the assistance of counsel was violated by the action of the judge in excusing counsel appointed by him from being present at the time of the rendition of the verdicts and imposition of sentences thereunder, without petitioner’s consent thereto.” In support of this allegation he stated that “immediately following the jury’s retirement from the court room to consider for its verdicts, Mr. Frye asked Judge Moore for permission to be absent from the court while the jury was out, and Judge Moore granted him leave as asked for and when the court received the jury’s verdicts about an hour later that day, Mr. Frye was not present in court at that time although he had been advised through instructions of the court that the jury was ready to submit its verdicts, and he, Mr. Frye, was not present immediately following the rendition of the jury’s verdicts when sentences thereunder were pronounced.” Petitioner further alleged that he did not competently and intelligently waive his right to counsel.
Respondent introduced as exhibits the docket entries and the record of judgment and the commitment in the trial court. The docket entries recite that with defendant’s consent the court appointed J. Grant Frye to represent the petitioner; that arguments were made to the jury by respective counsel; that verdicts.of guilty were returned and the defendant was sentenced. The journal entry of judgment recites that: “* * * came the United States Attorney, and the defendant Richard J. Thomas, appearing in proper person, and J. Grant Frye, Esq., his attorney, * * The trial court, apparently relying on the record evidence, refused petitioner the opportunity to testify concerning these allegations. This is urged as reversible error.
While there is a minority view, the great weight of authority is that in the absence of a charge of fraud, the judgment record of a court imports absolute verity and that it may not be challenged in a collateral proceeding by parol testimony. While there is some language in some decisions by the Supreme Court indicating that this rule is not to be applied in all its rigidity in a habeas corpus proceeding in which violations of fundamental constitutional rights are claimed, we think the later decisions by the Supreme Court indicate that recitals in the judgment record going to the jurisdiction of the court, such as that a defendant was represented by counsel, are impervious to attack by testimony in the absence of an allegation of fraud.
in Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009, a petition in a habeas corpus proceeding alleged that petitioner was tried by a jury of eleven men, notwithstanding a recitation in the record that “a jury of good and lawful men" was duly impaneled. The Supreme Court held that the record imported absolute verity and was not open to collateral attack. In Johnson v. Zerbst, 304 U.S. 458, 466, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357, the Supreme Court quotes with approval from In re Mayfield, Petitioner, 141 U.S. 107, 11 S.Ct. 939, 35 L.Ed. 635, as follows: “And the petitioned court has ‘power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or the person, even if such inquiry (involves) an examination of facts outside of, but not inconsistent with, the record.’ ”
In Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 578, 85 L.Ed. 830, Justice Roberts indicated that a petitioner could not dispute incontrovertible facts “such as those recited in a court record.” Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 365, indicates that petitioner’s right was limited to establishing allegations in the petition not inconsistent with the record.. Justice Douglas, in the course of the opinion, stated: “The petition for habeas corpus was denied without requiring the State to answer or without giving petitioner an opportunity to prove his allegations. And the allegations contained in the petition are not inconsistent• with the recitals of the certified copy of the sentence and judgment which accompanied the petition and under which petitioner is confined.” (Emphasis supplied.)
Hawk v. Olson, Warden, 66 S.Ct. 116, 119, contains this significant statement: “The record is either silent on or not inconsistent with anything material in these allegations.”
As pointed out, the journal entry of judgment specifically recites that at the time of sentence, petitioner was present in person and by his duly appointed counsel. In the face of this recital, he was not permitted in a collateral attack to offer oral testimony to impeach the correctness of this recital, and the trial court therefore committed no error in refusing to permit petitioner to contradict this recital by his oral testimony.
But the record is silent as to whether his counsel was present when the jury returned its verdict into court. He' alleged in his petition that he was not present, and that petitioner did not waive his right to counsel and that he was denied his constitutional right to be represented by counsel at this state of the proceedings. If as a matter of constitutional right he was entitled to be represented by counsel at the time the jury returned its verdict, he should have been permitted to testify as to these allegations, and it would be reversible error to refuse him the opportunity to so testify.
No case has been cited and our search has failed to disclose one in which the identical question has been decided. Kent v. Sanford, 5 Cir., 121 F.2d 216, 217, apparently recognizes the right of a defendant to be represented by counsel at the time the verdict was returned and sentence was pronounced. From the opinion it appears that petitioner was not so represented, but ■that he had been represented by counsel up to the point where the jury returned its verdict and sentence was imposed. The court apparently excused the failure to have counsel present on the theory, as stated in the opinion, that “The court advisedly accepted for itself the duty of representing the defendant upon the return of the verdict, and fully discharged that responsibility.” A number of cases have considered the right to counsel at the time of sentence, and, as in many instances, the decisions are not in accord. This question was before us in Batson v. United States, 10 Cir., 137 F.2d 288, but we did not find it necessary to pass upon it. Those cases which hold that it is not essential that counsel be present at the time of sentence generally place their decision on the ground that the sentence is no part of the trial. In the Batson case, supra, we expressed our disapproval of the practice of imposing sentence in the absence of counsel without expressly ascertaining that defendant does not desire his presence.
In Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 84 A.L. R. 527, the Supreme Court of the United States sets out in detail why a defendant is entitled to counsel at every stage of the proceedings, and states: “He requires the guiding hand of counsel at every step in the proceedings against him.”
In Hawk v. Warden, supra, Justice Reed said: “He had no advice of counsel prior to the calling of the jury. * * * The defendant needs counsel and counsel needs time.”
To hold that the return of the verdict into court or sentence thereafter is no part of the trial is to accord the term “trial” a very narrow and technical definition — too narrow a definition when the question under consideration is the violation of human rights and liberty guaranteed by the Constitution. We think that the return of the verdict by the jury and the imposition of sentence upon a verdict of guilty are steps in the trial of a defendant charged with the violation of a criminal statute. Certainly the return of the verdict is an important step in the trial, at which the defendant needs the guiding hand of competent counsel. He has the right and privilege of polling the juryj the right to stand and have each juror stand and face him and say whether the verdict is or is not his individual verdict. As stated in the Powell case, supra, and all the subsequent cases which follow it: “He requires the guiding hand of counsel at every step in the proceedings against him.” Failure to accord him this protection at every step in the proceedings constitutes error unless he intelligently waives the right thereto. It is not sufficient, in our opinion, to say that failure to accord him this protection at every step in the proceedings is immaterial error when it appears that the court “advisedly accepted for itself the duty of representing the defendant upon the return of the verdict, and fully discharged that responsibility.” Assuming that a court can adequately represent the defendant at any step of a contested criminal trial, that is not a substitute for, nor can it be taken in satisfaction of, the constitutional requirement that one charged with crime is entitled to the benefit of counsel who will devote his undivided energies solely and exclusively to the performance of these functions.
Failure to permit petitioner to testify as to this issue, in the light of the record, constitutes reversible error.
The judgment is accordingly reversed and the case is remanded, with directions to proceed in conformity with the views expressed herein.
While the decision in McMahan v. Hunter, 10 Cir., 150 F.2d 498, did not hinge upon the precise question, we had occasion there to consider this provision of the escape statute. There, McMahan escaped from custody while serving a sentence. He was convicted on an escape charge and was given an additional sentenee to begin at the expiration of the original sentence. We held, in effect, that, under those facts, the new sentence would not begin to run until the expiration of the original sentence or until he was paroled therefrom.
Emphasis supplied.
Freeman on Judgments, 5th Ed., Collateral Attack, § 375, et seq.; 31 C.J.S., Evidence, p. 793, § 145; 31 Am.Jur., p. 181, § 583.
Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 589, 59 L.Ed. 969. This case discusses in detail the place of habeas corpus in our jurisprudence when questions of constitutional rights are involved. After discussing these principles, the Supreme Court states: “In the light, then, of these established rules and principles: that the due process of law guaranteed by the 14th Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States, upon an application for a writ of habeas corpus, to look beyond forms and inquire into the very substance of the matter, to \ the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear from the record or not; * * *” (Emphasis supplied.)
See Footnote 2, Batson v. U. S., supra.
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_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
The FROSTIE COMPANY, Appellant, v. DR. PEPPER COMPANY, Appellee.
No. 21836.
United States Court of Appeals Fifth Circuit.
Feb. 12, 1965.
Daphne Robert Leeds, Washington, D. C., Anthony Atwell, Dallas, Tex., David H. Semmes, John Gibson Semmes, Washington, D. C., Atwell, Grayson & Atwell, Dallas, Tex., Semmes & Semmes, Washington, D. C., for appellant.
B. Thomas McElroy, W. D. White, White, McElroy & White, Dallas, Tex., for appellee.
Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.
TUTTLE, Chief Judge:
This is an appeal by the owner of the trademark “Frostie” when used in connection with the sale of a soft drink from an order of the trial court denying an injunction against infringement of its trademark and against unfair competition resulting from the use by the Dr. Pepper Company of the words “Frosty Pepper” prominently printed on the cartons of its soft drink product. The suit is brought under the Lanham Act, 15 U.S.C.A. §§ 1114-1119, 1121 and 1125 (a).
The record disclosed without dispute that the appellant is the owner of the valid trademark Frostie which it acquired in connection with the sale of a root beer concentrate; that it had many franchised bottlers throughout the country including 45 independent bottlers franchised both by the appellant and the appellee. The products of both parties are used by bottlers to produce bottles of Frostie and Dr. Pepper respectively which are sold largely in six-pack cartons stacked up in the soft drink departments of supermarkets and other outlets.
Prior to the acquisition of the trademark by appellant, the Dr. Pepper Company had used in its advertising copy, but not on the packages containing its bottles, the adjective “Frosty,” in suggesting that Dr. Pepper should be served cold such as “Dr. Pepper in a fresh, frosty bottle,” “chilled to a frosty turn,” “ice-cold bottles that come to you frosty and cold,” “get your Dr. Pepper frosty and cold.” Appellants do not contest’the right of the appellees to use such terminology in their advertising and sales promotion work, as, of course, they could not. In 1959 the appellee began using the words “Frosty Pep” on its cartons. These cartons also contained a picture of a bottle of Dr. Pepper being poured into a glass containing ice cream, and also on the opposite side contained the trademark Dr. Pepper and the words beneath it, “and ice cream.” It has ceased using the words “Frosty Pep” following litigation in which it was held that the word “pep” infringed the trademark of the Pepsi Cola Company. Subsequently, during the summer months the Dr. Pepper Company began using on its cartons the words “Frosty Pepper” together with a picture of a bottle of Dr. Pepper, a glass containing ice cream combined with a liquid, and with the words of the Dr. Pepper trademark and the words “and ice cream.”
There was no substantial proof by the appellants of actual confusion, although appellant tendered in evidence proof that not infrequently bottles of Frostie were delivered by bottlers in cartons bearing the name Dr. Pepper. The court ruled out this evidence and other proof tending to link the products of the two parties together in the public mind. The court held that this evidence was inadmissible because it was not the act of the appellee. This was error. Once the mark is used by appellee, the tendency of that use to confuse the public may be shown. The question remains whether the prominent use of the words “Frosty Pepper,” embodying as it does, in effect, the entire trademark of the Frostie Company on the package that is put on display for the purpose of attracting customers, is a violation of the provisions of the Lanham Act.
The trial court found “a ‘noun’ is a name of a person, place or thing. An ‘adjective’ is a word that describes a noun. ‘Pepper’ is a noun and is a name for Defendant’s drink. ‘Frosty’ is an adjective, meaning that which is cold or frozen, and when applied to ‘Pepper’ serves merely to modify, describe, or qualify such name as to condition or suggested use.” This finding is contrary to the testimony by the witnesses testifying for the Dr. Pepper Company and is clearly erroneous in that the words “Frosty Pepper” clearly, according to all of the evidence, describe a drink consisting of the Dr. Pepper with ice cream added. While it is true that the Dr. Pepper Company was not in the business of selling what is thus called a “Frosty Pepper,” it can not be doubted that the words “Frosty Pepper” designated an article, one of the ingredients of which was the article sold by the Dr. Pepper Company. It is equally clear that the word “Frosty” in the combination did not qualify the Dr. Pepper drink that was on sale.
It can hardly be disputed that any person seeing a carton of soft drinks bearing the legend “Frosty Pepper” in prominent type who, for some reason, had learned of the existence of appellant’s drink “Frostie,” but without knowing the source or origin of the drink may well have been misled into picking up a carton of Dr. Pepper bearing such label. Obviously, appellee would not have used this legend had they not intended thereby to attract purchasers. To the extent that the attraction was based on the use of the word Frosty, the attraction was based on the use of appellant’s trademark.
The finding by the trial court that such use was not likely to confuse the consumer, must necessarily have been based on the impermissible assumption that a prospective purchaser who was familiar with the trademark Frostie also knew that Frostie was not a product of the Dr. Pepper Company. Here was a direct appeal to persons who might be attracted by the term Frosty, or Frostie. To the extent that such attraction resulted from the exploitation by the appellee of appellant’s trademark Frostie, to which appellant had the exclusive right as a trademark for such bottled goods, this would be an infringement of appellant’s rights.
This Court has, of course, held that an intent to infringe or an intent to mislead the public is not a necessary ingredient to an action such as this. American Foods, Inc. v. Golden Flake, Inc., .5 Cir., 312 F.2d 619. We have also held that proof of actual confusion is not required since under the terms of the Lanham Act the likelihood of confusion is the appropriate test. Abramson v. Coro, Inc., 5 Cir., 240 F.2d 854. In view of the difference in spelling here between Frostie and Frosty, the language used by this Court in the Abramson case is of particular significance. We there said:
“The authorities are legion in holding that proof of actual deception is not needed to justify an injunction against the use of a trademark if it is of such a character or used in such a way as to be likely to deceive a prospective purchaser, and that similarity of sound as well as appearance may be taken into account in weighing this probability.” citing, LaTouraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 157 F.2d 115; George W. Luft Co. v. Zande Cosmetic Co., 2 Cir., 142 F.2d 536; Esso, Inc. v. Standard Oil Co., 8 Cir., 98 F.2d 1; Queen Manufacturing Co. v. Isaac Ginsberg & Bros., 8 Cir., 25 F.2d 284; S. S. Kresge Co. v. Champion Spark Plug Co., 6 Cir., 3 F.2d 415; Coca Cola Co. v. Old Dominion Beverage Corp., 4 Cir., 271 F. 600.
Our detei’mination that the word Frosty does not describe the characteristics of Dr. Pepper is supported by a decision of the United States Court of Customs and Patent Appeals in the Frostie Company v. Sun-Glo Packers, Inc., 315 F.2d 932, 49 C.C.P.A. 983. In that case, the appellant here was opposing the registration of a trademax-k by SunGlo Paekei's, Inc. consisting of the words “Frosty Inn” when used in connection with a soft drink. The Court of Customs and Patent Appeals said, “We are in full agreement with the board [the trademark trial and appeal board] that neither ‘Frosty’ nor ‘Frostie’ describes any property of root beer or other soft drinks. Thus they are not desci-iptive.” Persuasive also in the decision of this case, the court there said, “Here, ‘Frosty Inn’ is applied to the same goods as those for which the ti'ademark ‘Frostie’ is registered. In px-actical effect the foi’mer incorporates the latter in its entirety.” The same is true here. The words Frosty Pepper “incorporates ‘Frostie’ in its entirety.”
The trial court, in its discussion of nouns and adjectives, proceeded on the assumption that if the term Frosty in the wox"ds Frosty Pepper was anything other than descriptive of the article being sold by the appellee then, because of its identity with appellant’s trademark this would amount to an infringement. In this the trial court was correct. However, in deciding that the word Frosty was descriptive, the trial court was clearly in error. As indicated in the Lanham Act, it is a defense to an action if “the use of the name, term, or device charged to be an infringement is a use, otherwise than as a trade or service mark [ti’ademai'k,] * * * of a term or device which is descriptive of and used fairly and in good faith only to describe to users the goods * * * of such parties * * (Emphasis added.) “Frosty” does not describe to prospective users the goods sold by Dr. Pepper Company. It is a description of something else, as all parties agree. It is used in such a manner as to attract prospective customers to the product of the Dr. Pepper Company. Since such use of it incorporates the entire trademark of the appellant and can not be excused as being descriptive of the ap-pellee’s product, then it is, almost by definition, the equivalent of an infringing mark.
In determining whether there was likelihood of confusion, a matter as to which there was no substantial evidence, we are of the view that a mere ocular examination of the two marks might permit the trial court to make its conclusion. However, all relevant evidence should be considered.
Since it is impossible to determine from the record whether the trial judge admitted and considered all of the relevant evidence which was tendered on the issue of confusion, the case must be remanded for a factual inquiry into this question. In determining whether the appellee’s use of the words “Frosty Pepper” on its soft drink cartons is likely to confuse the consumer as to the source and origin of the goods, all the relevant evidence should have been considered by the trial court, including the exhibits of Dr. Pepper cartons and Frostie cartons containing the products of both of the parties. Indeed, as Callman points out: “The exhibit is of more potent evidentiary value than the testimony of witnesses.” 3 Callman, Unfair Competition and Trade-Marks 1576 (2d Ed. 1950). The court- must determine in its own opinion whether there is a likelihood of confusion, and it may not assume that the ordinary purchaser is thoroughly familiar with the products of the two parties. While all the tendered evidence is before us on appeal, we would prefer not to rely on an ocular examination by an appellate tribunal, but to leave to the district court, after a consideration of all the relevant evidence, the task of making an initial determination whether in the use of “Frosty Pepper” by appellee there is the requisite likelihood of confusion.
The judgment of the trial court is, therefore, reversed and the ease is remanded for further proceedings not inconsistent with this opinion.
. Tlie relevant provision is as follows:
“Any person who shall, in commerce, (a) use, without the consent of the registrant, in the reproduction, counterfeit, copy or colorable imitation of any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with, which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * * * shall be liable to a civil action by the registrant * *
. As stated by the Court of Appeals for the District of Columbia Circuit in Panitz, et al. v. University Clothes, Inc., 59 App.D.C. 299, 40 F.2d 811: “In our view, a mere ocular examination of the two marks leads to the conclusion that being devoted to goods of the same descriptive properties, they are sufficiently alike to cause confusion in trade and deceive purchasers, within the meaning of the rule announced * * * ”
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_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
MacDONALD, SOMMER & FRATES v. COUNTY OF YOLO et al.
No. 84-2015.
Argued March 26, 1986
Decided June 25, 1986
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and O’Connor, JJ., joined. White, J., filed a dissenting opinion, in which Burger, C. J., joined and in Parts I, II, and III of which Powell and Rehnquist, JJ., joined, post, p. 353. Rehnquist, J., filed a dissenting opinion in which Powell, J., joined, post, p. 364.
Howard N. Ellman argued the cause for appellant. With him on the briefs were Gus Bauman, Kenneth N. Burns, Scott C. Verges, and Edward R. MacDonald.
William L. Owen argued the cause for appellees. With him on the brief were Richard W. Sherwood, Charles R. Mack, and P. Lawrence Klose
Briefs of amici curiae urging reversal were filed for Adirondack Park Local Government Review Board et al. by Ronald A. Zumbrun, Robert K. Best, and Thomas W. Birmingham; for the American College of Real Estate Lawyers by Robert 0. Hetlage, Eugene J. Morris, John P. Tre-vaskis, Jr., and Edward I. Cutler; for the California Building Industry Association by Rex E. Lee, Benjamin W. Heineman, Jr., and Carter G. Phillips; for the First English Evangelical Lutheran Church of Glendale, Cal., et al. by J err old A. Fadem and Michael M. Berger; for Lodestar Co. by Gideon Kanner; and for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon.
Briefs of amici curiae urging affirmance were filed for the city of Mountain View, Cal., et al. by Peter D. Bulens, Robert J. Logan, Carter J. Stroud, Albert E. Polonsky, R. R. Campagna, Robert J. Lanzone, Mary Jo Levinger, Steven F. Nord, K. Duane Lyders, John W. Witt, Hadden Roth, and Robert Rogers; for the American Farmland Trust et al. by Fred P. Bosselman and Clijford L. Weaver; for the County Supervisors Association of California by Mark A. Wasser; and for the National Association of Counties et al. by Benna Ruth Solomon and Joyce Holmes Benjamin.
Briefs of amici curiae were filed for the United States by Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Kuhl, Deputy Assistant Attorney General Marzulla, and Peter R. Steen-land; for the State of California ex reí. John K. Van de Kamp, Attorney General, et al. by Mr. Van de Kamp, Richard C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant Attorneys General, and Craig C. Thompson and Richard M. Frank, Deputy Attorneys General, joined by the Attorneys General of their respective jurisdictions as follows: Harold M. Brown of Alaska, Francis X. Bellotti of Massachusetts, LeRoy S. Zimmerman of Pennsylvania, Charles M. Oberly III of Delaware, Jim Smith of Florida, L. Su’ esu’ Lutu of American Samoa, Leroy Mercer of the Virgin Islands, Richard Opper of Guam, Corinne K. A. Watanabe of Hawaii, James T. Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, William L. Webster of Missouri, Jeffrey L. Amestoy of Vermont, Hubert H. Humphrey III of Minnesota, Robert Abrams of New York, T. Travis Medlock of South Carolina, Jim Maddox of Texas, David L. Wilkenson of Utah, Kenneth 0. Eikenberry of Washington, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming; for the National Institute of Municipal Law Officers et al. by Roy D. Bates, Wil liam I. Thornton, Jr., John W. Witt, Roger F. Cutter, George Agnost, J. Lamar Shelley, Robert J. Alfton, James K. Baker, Frank B. Gummey III, James D. Montgomery, Clifford D. Pierce, Jr., William H. Taube, and Charles S. Rhyne; and for the Conservation Foundation et al. by Charles L. Siemon, Wendy U. Larsen, and Christopher J. Duerksen.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether rejection of a subdivision proposal deprived appellant of its property without just compensation contrary to the Fifth and Fourteenth Amendments to the United States Constitution.
h — I
This appeal is taken from a judgment sustaining a demurrer to a property owner’s complaint for money damages for an alleged “taking” of its property. In 1975, appellant submitted a tentative subdivision map to the Yolo County Planning Commission. Under appellant’s proposal, the subject property, at least part of which was planted with corn, would be subdivided into 159 single-family and multifamily residential lots.
The Yolo County Planning Commission rejected the subdivision plan, however, and the Board of Supervisors of the county affirmed that determination. The Board found numerous reasons why appellant’s tentative subdivision map was neither “consistent with the General Plan of the County of Yolo, nor with the specific plan of the County of Yolo embodied in the Zoning Regulations for the County.” App. 73. Appellant focuses our attention on four of those reasons. See id., at 45-46 (fourth amended complaint). First, the Board criticized the plan because it failed to provide for access to the proposed subdivision by a public street: the city of Davis, to which the subdivision would adjoin, refused to permit the extension of Cowell Boulevard into the development. See id., at 74. Even ignoring this obstacle, “[t]he map presented ma[de] no provision for any other means of access to the subdivision,” and the Board calculated that relying on an extension of Cowell Boulevard alone would “constitute] a real and substantial danger to the public health in the event of fire, earthquake, flood, or other natural disaster.” Id., at 77.
Second, the Board found that appellant’s “Tentative Map as presented [did] not provide for sewer service by any governmental entity”:
“The only means for provision of sewer services by the El Macero interceptor sewer require that the proposed subdivision anne[x] to the existing Community Services Area. Said annexation is subject to Local Agency Formation Commission jurisdiction. The Board finds that no proceedings currently are pending before LAFCO for the annexation of the proposed subdivision.” Id., at 75.
Third, the Board rejected the development plan because “[t]he level of [police] protection capable of being afforded to the proposed site by the [Yolo County] Sheriff’s Department is not intense enough to meet the needs of the proposed subdivision.” Id., at 76. Fourth, the Board found inadequate the provision for water service for the reason that there was “no provision made in the proposed subdivision for the provision of water or maintenance of a water system for the subdivision by any governmental entity.” Ibid.
After this rebuff, appellant filed the present action and, on the same day, a petition for a writ of mandate. The mandate action, which is still pending, seeks to set aside the Board’s decision and to direct the Board to reconsider appellant’s subdivision proposal. See id,., at 32-33 (amended petition for writ of mandate). This action, in contrast, seeks declaratory and monetary relief. In it, appellant accuses appellees County of Yolo and city of Davis of “restricting the Property to an open-space agricultural use by denying all permit applications, subdivision maps, and other requests to implement any other use,” id., at 46, and thereby of appropriating the “entire economic use” of appellant’s property “for the sole purpose of [providing] ... a public, open-space buffer,” id., at 51. In particular, the fourth amended complaint challenges the Board’s decision with respect to the adequacy of public access, sanitation services, water supplies, and fire and police protection. Because appellees denied these services, according to the complaint, “none of the beneficial uses” allowed even for agricultural land would be suitable for appellant’s property. Id., at 52. The complaint alleged, in capital letters and “Without limitation by the foregoing ENUMERATION,” that “ANY APPLICATION FOR A ZONE CHANGE, VARIANCE OR OTHER RELIEF WOULD BE FUTILE.” Id., at 58. The complaint also alleged that appellant had “exhausted all of its administrative remedies” and that its seven causes of action were “ripe” for adjudication. Id., at 58, 59.
In response to these charges appellees demurred. Pointing to “its earlier Order Sustaining Demurrers and Granting Leave to Amend,” the California Superior Court contended that “the property had obvious other uses than agriculture under the Yolo County Code,” id., at 115, and referenced sections permitting such uses, among others, as ranch and farm dwellings and agricultural storage facilities, see Yolo County Code §§8-2.502, 8-2.503. The court rejected appellant’s “attemp[t] to overcome that defect by alleging as conclusion-ary fact that each and every principal use and each and every multiple accessory use is no longer possible so that the property does have no value as zoned.” App. 115. It concluded that, irrespective of the insufficiency of appellant’s factual allegations, monetary damages for inverse condemnation are foreclosed by the California Supreme Court’s decision in Agins v. City of Tiburon, 24 Cal. 3d 266, 274-277, 598 P. 2d 25, 29-31 (1979), aff’d, 447 U. S. 255 (1980). App. 116, 118.
The California Court of Appeal affirmed. It “accepted] as true all the properly pled factual allegations of the complaint,” id., at 126, and did “not consider whether the complaint was barred by the failure to exhaust administrative remedies or by res judicata,” id., at 125-126. But it “f[ou]nd the decision in Agins to be controlling herein,” id., at 130:
“In that case the [California] Supreme Court specifically and clearly established, for policy reasons, a rule of law which precludes a landowner from recovering in inverse condemnation based upon land use regulation. We emphasize that the Court did not hold that regulation cannot amount to a taking without compensation, it simply held that in such event the remedy is not inverse condemnation. The remedy instead is an action to have the regulation set aside as unconstitutional. Plaintiff has filed a mandate action in the trial court which is currently pending. That is its proper remedy. The claim for inverse condemnation cannot be maintained.” Id., at 130-131 (citation and footnote omitted).
In the alternative, the California Court of Appeal determined that appellant would not be entitled to monetary relief even if California law provided for this remedy:
“In any event, even if an inverse condemnation action were available in a land use regulation situation, we would be constrained to hold that plaintiff has failed to state a cause of action. Pared to their essence, the allegations are that plaintiff purchased property for residential development, the property is zoned for residential development, plaintiff submitted an application for approval of development of the property into 159 residential units, and, in part at the urging of the City, the County denied approval of the application. In these allegations plaintiff is not unlike the plaintiffs in Agins ... [a case in which] both the California Supreme Court and the United States Supreme Court held that the plaintiffs had failed to allege facts which would establish an unconstitutional taking of private property.
“The plaintiff’s claim here must fail for the same reasons the claims in Agins failed. Here plaintiff applied for approval of a particular and relatively intensive residential development and the application was denied. The denial of that particular plan cannot be equated with a refusal to permit any development, and plaintiff concedes that the property is zoned for residential purposes in the County general plan and zoning ordinance. Land use planning is not an all-or-nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property. Here, as in Agins, the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Accordingly, the complaint fails to state a cause of action.” Id,., at 132-133 (citation omitted).
The California Supreme Court denied appellant’s petition for hearing, and appellant perfected an appeal to this Court. Because of the importance of the question whether a monetary remedy in inverse condemnation is constitutionally required in appropriate cases involving regulatory takings, we noted probable jurisdiction. 474 U. S. 917 (1985). On further consideration of our jurisdiction to hear this appeal, aided by briefing and oral argument, we find ourselves unable to address the merits of this question.
I — I I — I
The regulatory takings claim advanced by appellant has two components. First, appellant must establish that the regulation has in substance “taken” his property — that is, that the regulation “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). See Kaiser Aetna v. United States, 444 U. S. 164, 178 (1979). Second, appellant must demonstrate that any proffered compensation is not “just.”
It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes. As Justice Holmes emphasized throughout his opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S., at 416, “this is a question of degree — and therefore cannot be disposed of by general propositions.” Accord, id., at 413. To this day we have no “set formula to determine where regulation ends and taking begins.” Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962). Instead, we rely “as much [on] the exercise of judgment as [on] the application of logic.” Andrus v. Allard, 444 U. S. 51, 65 (1979). Our cases have accordingly “examined the ‘taking’ question by engaging in essentially ad hoc, factual inquiries that have identified several factors — such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action — that have particular significance.” Kaiser Aetna v. United States, 444 U. S., at 175. See Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978) (“ad hoc, factual inquiries”); United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958) (“question properly turning upon the particular circumstances of each case”). Until a property owner has “obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,” “it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.” Williamson Planning Comm’n v. Hamilton Bank, 473 U. S. 172, 186, 190, n. 11 (1985). As we explained last Term:
“[T]he difficult problem [is] how to define “too far,” that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession. . . . [Resolution of that question depends, in significant part, upon an analysis of the effect the Commission’s application of the zoning ordinance and subdivision regulations had on the value of respondent’s property and investment-backed profit expectation. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent’s property.” Id., at 199-200 (footnote omitted).
Accord, id., at 191.
For similar reasons, a court cannot determine whether a municipality has failed to provide “just compensation” until it knows what, if any, compensation the responsible administrative body intends to provide. See id., at 195 (“[T]he State’s action here is not ‘complete’ until the State fails to provide adequate compensation for the taking” (footnote omitted)). The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one hand they may give back with the other. In Penn Central Transportation Co. v. New York City, for example, we recognized that the Landmarks Preservation Commission, the administrative body primarily responsible for administering New York City’s Landmarks Preservation Law, had authority in appropriate circumstances to authorize alterations, remit taxes, and transfer development rights to ensure the landmark owner a reasonable return on its property. See 438 U. S., at 112-115, and n. 13. Because the railroad had “not sought approval for the construction of a smaller structure” than its proposed 50-plus story office building, id., at 137; see id., at 137, n. 34, and because its development rights in the airspace above its Grand Central Station Terminal were transferable “to at least eight parcels in the vicinity of the Terminal, one or two of which ha[d] been found suitable for the construction of a new office building,” id., at 137, we concluded that “the application of New York City’s Landmarks Law ha[d] not effected a ‘taking’ of [the railroad’s] property,” id., at 138. Whether the inquiry asks if a regulation has “gone too far,” or whether it seeks to determine if proffered compensation is “just,” no answer is possible until a court knows what use, if any, may be made of the affected property.
Our cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it. Thus, in Agins v. Tiburon, 447 U. S. 255 (1980), we held that zoning ordinances which authorized the development of between one and five single-family residences on appellants’ 5-acre tract did not effect a taking of their property on their face, and, because appellants had not made application for any improvements to their property, the constitutionality of any particular application of the ordinances was not properly before us. See id., at 260. Similarly, in San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 (1981), we dismissed the appeal because it did not appear that the city’s rezoning and adoption of an open space plan had deprived the utility of all beneficial use of its property. See id., at 631-632, and n. 12. Because the California Court of Appeal had “not decided whether any taking in fact ha[d] occurred, . . . further proceedings [were] necessary to resolve the federal question whether there has been a taking at all.” Id., at 633. As a consequence, the judgment was not final for purposes of our jurisdiction under 28 U. S. C. § 1257. Ibid. Most recently, in Williamson Planning Comm’n v. Hamilton Bank, we held that the developer’s failure either to seek variances that would have allowed it to develop the property in accordance with its proposed plat, or to avail itself of an available and facially adequate state procedure by which it might obtain “just compensation,” meant that its regulatory taking claim was premature.
Here, in comparison to the situations of the property owners in the three preceding cases, appellant has submitted one subdivision proposal and has received the Board’s response thereto. Nevertheless, appellant still has yet to receive the Board’s “final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Williamson Planning Comm’n v. Hamilton Bank, 473 U. S., at 191. In Agins, San Diego Gas & Electric, and William son Planning Comm’n, we declined to reach the question whether the Constitution requires a monetary remedy to redress some regulatory takings because the records in those cases left us uncertain whether the property at issue had in fact been taken. Likewise, in this case, the holdings of both courts below leave open the possibility that some development will be permitted, and thus again leave us in doubt regarding the antecedent question whether appellant’s property has been taken. The judgment is therefore
Affirmed.
The Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” The Fifth Amendment prohibition applies against the States through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 236, 239, 241 (1897). See also Williamson Planning Comm’n v. Hamilton Bank, 473 U. S. 172, 175, n. 1 (1985); San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 623, n. 1 (1981).
“25. In determining that Plaintiff’s land could only be used for agricultural purposes, notwithstanding its general planning and zoning designation for residential use and its suitability therefor, County determined that (i) the Property lacked access by means of suitable public streets, a condition resulting from City’s deliberate refusal to permit or approve available access; (ii) the [Property lacked sanitary sewer service, a condition resulting directly from the wrongful acts of City, County and District above alleged[;] (iii) the Property lacked adequate water supply, a finding directly contrary to the fact (in evidence before County) that there are proven sources of supply on the Property and in the vicinity thereof which serve the immediately adjacent residential areas[;] and (iv) that the Property lacked adequate fire and police services, conditions attributable in part to refusal on part of County and City to provide such services.” App. 51-52.
In California, “those factual allegations of the complaint which are properly pleaded are deemed admitted by defendant’s demurrer.” Thompson v. County of Alameda, 27 Cal. 3d 741, 746, 614 P. 2d 728, 730 (1980). “However,” a demurrer “does not admit contentions, deductions or conclusions of fact or law alleged therein.” Daar v. Yellow Cab Co., 67 Cal. 2d 695, 713, 433 P. 2d 732, 745 (1967) (citations omitted). See, e. g., Serrano v. Priest, 5 Cal. 3d 584, 591, 487 P. 2d 1241, 1245 (1971); Chicago Title Ins. Co. v. Great Western Financial Corp., 69 Cal. 2d 305, 327, 444 P. 2d 481, 495 (1968); Sych v. Insurance Co. of North America, 173 Cal. App. 3d 321, 326, 220 Cal. Rptr. 692, 695 (1985); Read v. City of Lynwood, 173 Cal. App. 3d 437, 442, 219 Cal. Rptr. 26, 28 (1985). Thus, one intermediate California appellate court has sustained a demurrer to a complaint alleging a regulatory taking on jurisdictional grounds, notwithstanding an “allegation in [appellants’] complaint that they ‘have exhausted their administrative remedies’”; for “while a demurrer admits all material facts which are properly pleaded, it does not admit conclusions of fact or law alleged therein. Appellants’ conclusionary statement that they exhausted their administrative remedies therefore cannot avail them.” Pan Pacific Properties, Inc. v. County of Santa Cruz, 81 Cal. App. 3d 244, 251, 146 Cal. Rptr. 428, 432 (1978) (citation omitted). Cf. Hecton v. People ex rel. Dept. of Transportation, 58 Cal. App. 3d 653, 657, 130 Cal. Rptr. 230, 232 (1976) (same; allegations of taking and damage).
We understand the Superior Court to have sustained the demurrer both because the complaint failed properly to plead facts amounting to a taking and because California law does not provide a monetary remedy for a regulatory taking. The Superior Court, after explaining these two reasons, concluded simply that “[t]he complaint fails to state a proper cause of action for inverse condemnation.” App. 116. Although Justice White’s dissent treats the first reason as dicta and the second as the actual basis of decision, see post, at 355-356, since the Superior Court did not rest its holding on only one of its two stated reasons, it is appropriate to treat them as alternative bases of decision.
In answer to appellant’s 42 U. S. C. § 1983 claim, the California Court of Appeal similarly held that a monetary judgment was foreclosed by Agins, and that “[e]ven if a cause of action for monetary damages could be stated under the Civil Rights Act based upon the regulation of the use of property, the allegations would be insufficient in this case:
“Plaintiff seeks compensation because the County refused approval of the intensive development it desires, but that refusal does not mean that other, less intensive uses would also be denied. Accordingly plaintiff has not alleged facts sufficient to establish an uncompensated taking of its property.” App. 135.
We accept for the purposes of deciding this case that any taking was for a public purpose, as alleged in the complaint. See id., at 50. See also id., at 51, 60.
A property owner is of course not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain this determination. See Williamson Planning Comm’n v. Hamilton Bank, 473 U. S., at 205-206 (Stevens, J., concurring in judgment); United States v. Dickinson, 331 U. S. 745, 749 (1947).
Appellant’s current complaint — as authoritatively construed by the California Court of Appeal — alleged the denial of only one intense type of residential development. Appellant does not contend that only improvements along the lines of its 159-home subdivision plan would avert a regulatory taking. Rather, the complaint alleged that appellant was deprived of all beneficial use of its property. See App. 51, 60, 65. The California Court of Appeal, whose opinion on matters of local law and local pleading we must respect, cf. Agins v. Tiburon, 447 U. S. 255, 259-260, n. 5 (1980), apparently rejected what the Superior Court labeled a “conclusionary” allegation of futility, and explained that appellant could seek an administrative application of the Yolo County General Plan and Zoning Ordinances to its property which, for aught that appears, would allow development to proceed.
Justice White’s dissent reluctantly concludes that our understanding of the Court of Appeal’s decision is “plausible” and “sensible,” but insists that the Court of Appeal’s decision is “most properly read as taking as true all of the allegations in the complaint, including the allegations of futility, and as rejecting those allegations as insufficient as a matter of substantive takings law.” Post, at 363. We disagree. Both state courts upheld ap-pellees’ demurrer on the ground that not all development had been foreclosed. Thus, the Superior Court apparently accepted appellant’s submission that its property was restricted to agricultural use but held that, even so, valuable use might still be made of the land. The Court of Appeal was unwilling to concede even this much: it noted that appellant’s property was zoned residential and held that valuable residential development was open to it. These holdings that there is no total prohibition against the productive use of appellant’s land cannot possibly be reconciled with the allegations in the complaint that “any beneficial use” is precluded, App. 46, and that future applications would be futile, id., at 58. In view of the fact that these allegations were necessarily rejected by the state courts, and that the parties’ briefs disclose a permissible basis for this disposition in settled California demurrer law, see n. 3, supra; see also Brief for Respondents in 3 Civil 22306 (Cal. Ct. App., Third App. Dist., July 10, 1984), pp. 25, 27; Memorandum of Points and Authorities in Support of Demurrer to Fourth Amended Complaint in No. 36655 (Cal. Super. Ct., Yolo County, Dec. 18, 1981), 4 Clerk’s Tr., pp. 888-889, 912, n. 2, 914, it does not matter that the state courts neglected to “expressly disapprove” the deficient allegations or to detail the particular reasons why, see post, at 357.
Remarkably, the dissent implies that the Court of Appeal accepted the complaint’s allegations that local regulations denied appellant all beneficial use of its property and that further regulatory proceedings would be fruitless, but nonetheless required it to file further “useless” applications to state a taking claim. Ibid. Whatever purpose such a requirement might serve, futile reapplications are not contemplated by the Court of Appeal. To begin with, this requirement is not, as the dissent maintains, suggested by the Court of Appeal’s reliance on the decisions of the California Supreme Court and of this Court in Agins. See App. 132. To the contrary, the Court of Appeal relied on the decisions in Agins to illustrate that the property owners there — as here — had not “attempt[ed] to obtain approval to . . . develop the land” in accordance with applicable zoning regulations and for this reason had “failed to allege facts which would establish an unconstitutional taking of private property.” Id., at 132-133. See 447 U. S., at 259-263; 24 Cal. 3d 266, 277, 598 P. 2d 25, 31 (1979). The implication is not that future applications would be futile, but that a meaningful application has not yet been made. The dissent’s supposition that the Court of Appeal accepted the allegations of taking and futility is further contradicted by the court’s express denial that submission of a less intensive application would be futile: “the refusal of the [appellees] to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development.” App. 133.
Appellant is thus in the same position Mr. and Mrs. Agins would have occupied if they had requested and been denied the opportunity to build five Victorian mansions for their single-family residences, or if San Diego Gas & Electric Co. had asked and been denied the option of building a nuclear powerplant. Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. In this case, of course, we have statements from both courts below dispelling any doubt on this point.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_adminaction_is
|
B
|
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.
MORRIS v. WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE
No. 71-6698.
Argued January 17, 1973
Decided February 22, 1973
E. R. McClelland argued the cause and filed a brief for petitioner.
Walter H. Fleischer argued the cause for respondent. On the brief were Solicitor General Griswold, Assistant Attorney General Wood, Mark L. Evans, Kathryn H. Baldwin, and Michael Kimmel.
Per Curiam.
Twenty days after this Court granted a writ of certiorari, 409 U. S. 841, Congress amended the relevant statutory provisions, § 202 (d)(8) of the Social Security Act, 42 U. S. C. §402 (d)(8). See § 111 (a), Social Security Amendments of 1972 (Oct. 30, 1972), Pub. L. 92-603, 86 Stat. 1329. The writ of certiorari heretofore granted is dismissed as improvidently granted.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_genapel2
|
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 is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, Appellant, v. PACKAGE MACHINERY COMPANY, Respondent, Appellee.
No. 71-1344.
United States Court of Appeals, First Circuit.
Heard March 8, 1972.
Decided March 30, 1972.
Robert A. Giannasi, Atty., Washington, D.C., with whom Peter G. Nash, Gen. Counsel, and Marcel Mallet-Pre-vost, Asst. Gen. Counsel, were on brief, for petitioner.
Jerome N. Weinstein with whom Herrick, Smith, Donald, Farley & Ketchum, Michael R. Brown, Walter E. Graham, and Peter L. Resnick, Boston, Mass., were on brief, for respondent.
Benjamin Werne, New York City, Norman D. Alvy, Hempstead, N. Y. and Naomi Werne, Jamaica, N. Y., on brief for The National Automatic Merchandising Assn., amicus curiae.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
A union representing the employees of respondent Package Machinery Company sought to bargain with the company over the prices to be charged in the cafeteria and food vending machines. This demand was made when the company notified the union that prices were to be advanced; e.g., coffee and soda from 10^ to 15^; milk to be in smaller containers. The restaurant and vending machines are, so to speak, a concession in reverse; the company pays a national vending concern a subsidy in order to persuade it to conduct the operation. The company refused to bargain over the price rises and eventually an order was entered by the Board.
Basically, indeed, very broadly, the Board wishes us to adopt its Westinghouse Corporation decision, 156 N.L.R. B. 1080, reversed en banc, Westinghouse Elec. Corp. v. NLRB, 4 Cir., 1967, 387 F.2d 542. The principle presently advanced by the Board is potentially a far-reaching one, for notwithstanding its attempted reliance on prior cases for support the Board in fact seeks a newly-expanded definition of “conditions of employment,” 29 U.S.C. § 158(d), as it relates to company-supplied food services. At the outset we note that this is obviously not the case of hardship present in Weyerhaeuser Timber Co., 1949, 87 N.L.R.B. 672, involving food services at a remote logging camp. Here over 90% of the employees come to work by automobile; there are several restaurants or cafeterias within a five-minute drive, and although virtually all employees use the vending machines at one time or another, only 50% patronize the company cafeteria. On this record the case is weaker than Westinghouse Electric, ante, where the Board found that there were “inadequate dining facilities within a reasonable distance of the plants” and that Westinghouse employees were “compelled” to eat on the premises. No such finding was made here. Nor does the company propose to discontinue the services. The union seeks to debate simply the extent to which the company must subsidize the cost.
Were we to decide in favor of the Board in this case it could not help but be a precedent, to the extent that it is recognized elsewhere, of nation-wide importance. The Board presents no record as to various company practices in this regard. All it has is a demand from a union that the company should contribute to the expenses of lunch or snacks for those who do not wish to bring their lunch from home, or to take the trouble to drive to a nearby restaurant. If food costs go up from time to time, as inevitably they seem to, it would appear more appropriate to bargain over wages, particularly when half of the employees do not use the company restaurant. In any event, on so thin a record we do not believe we should endorse so broad a principle. The order of the Board will not be enforced.
. Local #220 International Union of Electrical, Radio and Machine Workers, AFL-CIO.
. Tlie Board, quite correctly, did not recognize the union’s charge that the company must bargain over its “profits.”
. The Board took the procedural course of charging a section 8(a) (5) (1) violation for failure to supply information.
. Westinghouse Elec. Corp. v. NLRB, 4 Cir., 1966, 369 F.2d 891, 894 n. 6.
. To this extent a substantial red herring is sought to be introduced into the ease by National Automatic Machines Assoc., which has submitted an amicus brief. Tlie question is not whether the union is to sit down with the concessionaire in its day by day pricing, but is whether the union lias a right to bargain over the bill which the company must pick up as a result of charging tlie emjiloyees below cost.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_geniss
|
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. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES, Appellee, v. Heather L. LANNI, Defendant, Appellant.
No. 91-1391.
United States Court of Appeals, First Circuit.
Heard Nov. 6, 1991.
Decided Dec. 19, 1991.
Ralph J. Perrotta, Washington, D.C., by appointment of the Court, for defendant, appellant.
Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for appellee.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
COFFIN, Senior Circuit Judge.
This appeal followed a conditional plea of guilty to a charge of embezzlement from a federally insured credit union in violation of 18 U.S.C. § 657. In entering the plea, under Fed.R.Crim.P. 11(a)(2), defendant-appellant reserved the right to appeal the denial of her motion to suppress statements made to FBI agents during an interview at her home. The sole issue is whether the district court erred in ruling, after a suppression hearing, that no Miranda warnings were necessary, because defendant was not “in custody.” Although viewing this as a close case, we affirm.
A district court’s findings in a suppression hearing are binding on appeal unless clearly erroneous, and we will uphold the district court’s denial of a motion to suppress if any reasonable view of the evidence supports it. United States v. Stanley, 915 F.2d 54, 57 (1st Cir.1990); United States v. Masse, 816 F.2d 805, 809 n. 4 (1st Cir.1987). In sketching the underlying events of this case, we therefore select, where different versions of what happened were given, those facts favorable to the government.
Suspecting defendant of having participated in the embezzlement of $7,000 from the Equitable Credit Union through processing a check at her credit union teller window, two F.B.I. agents went to her home between 8:00 and 8:30 a.m. on Monday, August 6, 1990. Defendant, just awakened, after viewing the agents through a window, hastily put on sweat pants and allowed the agents to enter. Special Agent O’Connor, who did all of the questioning, sat some ten feet away from defendant in the living room on an adjoining sofa, Special Agent Eaton sitting near O’Connor.
Apart from showing their credentials, identifying themselves, and indicating that they wished to discuss a matter with defendant, there was no other statement suggesting either that defendant was free to terminate the conversation at any time or that she was not free. No Miranda warnings were given. The interview lasted for approximately four hours. When defendant’s husband entered the living room shortly after the agents’ arrival, O’Connor asked him if he would allow them to interview his wife alone. He acquiesced, went to the kitchen, and made breakfast for the couple’s two-year-old son. He then sat with his son in the adjacent dining room, which opened onto the living room. Defendant did not request and did not have breakfast.
The next hour began with O’Connor’s requesting biographical data and names of friends and acquaintances. He then asked defendant to describe in detail the procedures she would follow in cashing checks at the credit union. Finally, he asked defendant whether she had cashed the $7,000 check in question. Defendant denied having any recollection concerning it. During the morning, the two-year-old boy, a dog, and a kitten played in the living room area. At some point, defendant’s father arrived, but was asked by defendant to come back later.
Then began another hour in which O’Connor asked defendant and her husband to provide handwriting exemplars. Each wrote ten checks with each hand, replicating the writing on the forged check, pursuant to step-by-step instructions from O’Connor. The date, the amount of money in words, the amount of money in numerals, and the signature were thus written out twenty times by each of the couple. The elapsed time was approximately one hour.
Then followed renewed questioning about the cashing of the check which became, to use the word of O’Connor, “intense.” O’Connor indicated that defendant’s explanation as to her lack of knowledge of the check did not make any sense. Defendant finally began to cry, said that she had been afraid of retaliation by others, then gave O’Connor an oral statement of her involvement, followed by a written statement, which took about 45 minutes to execute. Defendant’s husband also gave a written statement. After breaking down, defendant asked to go to the bathroom, because she had not gone all morning. O’Connor allowed her to do so.
The district court, in a brief oral opinion, recognized that to be interviewed by police officers is not a pleasant experience, but that subjective apprehension was not the test. It noted that the interview was conducted by only two officers and took place in defendant’s home. It added, “The only aspect of this matter that might suggest some kind of coercion is the duration and the character of the interrogation.” But it concluded that defendant was not in custody at the time of the interrogation and Miranda warnings were not required.
In evaluating whether a suspect was in custody and thus entitled to Miranda warnings, we look to see, using objective standards, whether there was a manifestation of a significant deprivation of or restraint on the suspect’s freedom of movement, taking into account such factors as “ ‘whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation.’ ” Masse, 816 F.2d at 809 (quoting United States v. Streifel, 781 F.2d 953, 961 n. 13 (1st Cir.1986)).
Our assessment is not accomplished by a color-matching process, or by giving weights to various factors pro-and con-custody, and totting up the columns. Nevertheless it helps us view a case as either clear or close to isolate those factors that suggest restraint and those that suggest freedom of movement. The latter are these: there was no statement suggesting that defendant was not free to leave or terminate the questioning; the hour of 8:00 or 8:30 a.m. is not an outlandish one; the interview was in defendant’s home, with her husband, child, and pets nearby; only two agents were present and only one did the questioning; there were no “tricks” such as a “good guy — bad guy” routine or the use of false information; defendant was freely allowed to go to the bathroom.
The factors suggesting restraint are these: there was no statement that defendant was free to leave or terminate questioning, or that she could refuse to execute handwriting samples; the appearance of the officers at 8:00 or 8:30 a.m. on a Monday morning obviously caught defendant before she had dressed, eaten, or prepared for the day; while in familiar surroundings, defendant did not eat or go to the bathroom during the entire morning; an agent requested defendant’s husband to leave the living room; the overall lapse of some four hours was not only long in duration but of increasing intensity as defendant and her husband executed the handwriting samples, following some 160 separate instructions from Agent O’Connor (four written sections of ten sample checks for each hand of each person); an admittedly tense atmosphere existed near the end as the agent expressed his disbelief of defendant’s profession of no recollection.
This ranging of factors highlights for us the fact that the case was not an easy one, as the district court realized with its singling out the duration and character of the interrogation as possibly suggestive of coercion. Defendant-appellant has cited her strongest precedent, United States v. Griffin, 922 F.2d 1343 (8th Cir.1990). In that case, two F.B.I. agents, suspecting defendant of involvement in a robbery, visited defendant’s home at 7 p.m. When defendant arrived, the agents asked his parents to leave them in private, and, without informing him of any rights, including Miranda warnings, talked with him for two hours, obtaining incriminating statements. But, in addition to these factors, which are similar to those found in the case before us, and significant in the Griffin court’s conclusion that there was “restrain[t] to a degree commonly associated with formal arrest,” were the facts that on two occasions when defendant went out of the room to obtain cigarettes, he was accompanied by an agent, and that he was told to remain in view of the agents at all times. Id. at 1354. In other words, Griffin does not compel suppression in this case. There were no restraint-indicative orders with the directness of those in Griffin.
On the other hand, the government has cited United States v. Hocking, 860 F.2d 769 (7th Cir.1988). In that case two agents quizzed a suspect for three hours, asked his wife to leave, revealed that they possessed two tape recordings of conversations in which the suspect discussed payoffs, told him that he faced criminal charges, could be imprisoned, and that monies he received illegally could be forfeited. The court noted the politeness of the agents, the absence of threatening gestures, the “routine” nature of the questioning, and concluded that there had not been a custodial interrogation. Id. at 773. As we concluded concerning Griffin, so do we view Hocking; it does not compel a denial of the motion to suppress. In the instant case, the time span was longer, the handwriting exemplar exercise arguably more stressful, the lack of food an added factor.
What this comparison suggests to us is that the facts of this case place it in the gray area where a court, having the benefit of testimony and the “feel” of the situation, could decide that the interrogation was or was not custodial. We therefore hold that the district court did not commit clear error in drawing the inference that defendant was not in custody. See Stanley, 915 F.2d at 57.
We add one final note of caution. In argument before us, counsel for the government took the position that this was a clearcut case for denial of suppression. A decision to suppress on the ground that the interrogation had reached the custodial status would have been, he argued, clearly erroneous. Moreover, he argued that defendant “clearly controlled” the playing field and that the surroundings were “more relaxing for the suspect than the officers.” Such hyperbole not only falls well short of helpful advocacy; it threatens one’s hard-earned credibility.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_appel1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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.
STANDARD OIL CO. v. CITY OF TALLAHASSEE.
No. 13089.
United States Court, of Appeals Fifth Circuit.
June 30, 1950.
Rehearing Denied July 28, 1950.
Lawrence A. Truett, Chas. S. Ausley, Tallahassee, Fla., for appellant.
James Messer, Jr., City Attorney, Tallahassee, Fla., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and RUSSELL, Circuit Judges.
McCORD, Circuit Judge.
This action was brought by Standard Oil Company, a corporation organized under the laws of Kentucky, against the City of Tallahassee, a municipal corporation of the state of Florida, to enjoin the enforcement of a city zoning ordinance adopted by that municipality on April 27, 1948.
On April 30, 1949, a temporary restraining order was granted by the district court enjoining the City of Tallahassee from enforcing said ordinance against plaintiff pending a final hearing and disposition of the cause. On November 30, 1949, after considering the pleadings, stipulation of counsel, and the testimony adduced upon a full hearing of the case, the district court held the ordinance valid and enforceable, whereupon the temporary restraining order was dissolved and the suit dismissed.
The main question presented is whether the zoning ordinance involved is justified as a reasonable exercise of the police power of the municipality to promote the general welfare of its inhabitants, or whether, as it affects plaintiff’s property, it is so arbitrary and unreasonable as to constitute a confiscation of its property without due process of law, or so discriminatory as to deny appellant the equal protection of the law.
The material facts, as stipulated by the parties and found by the trial court, reveal that Standard Oil Company owns and operates a gasoline service station at the intersection of Lafayette and Monroe Streets in the City of Tallahassee, across from the main entrance to the State Capitol. The property on which the service station is located was purchased in 1938 for the purpose of constructing a station thereon, which was to be used as a retail outlet for the sale of plaintiff’s gasoline and oil products. At the time of its purchase there were no restrictions by ordinance against the use of the property for such purpose.
Chapter 15,520, Special Laws of Florida, Acts of 1931, specifically authorized the City of Tallahassee to regulate the location and use of buildings and lands within that City, pursuant to a comprehensive zoning plan. Subsequently, practically the same grant of authority was given all municipalities in the State through the enactment of Chapter 19,539, Laws of Florida, Act of 1939, F.S.A. § 176.01 et seq.
On April 13, 1936, acting under authority granted to it by Chapter 15,520 of the Special Laws of Florida, the City of Tallahassee adopted a comprehensive zoning plan for the City. The area within which plaintiff’s property is located was then designated as a residence district “A”, and under the terms of the zoning ordinance service stations could not be operated within the area. However, a later zoning ordinance adopted that same year changed the designation of the area to residence district “B”, and under this new classification service stations could be constructed and operated within the area. It was during the period when this latter ordinance was in effect that plaintiff purchased the property in dispute and constructed its service station thereon.
On January 24, 1939, the City adopted Ordinance No. 334, which removed from residence district “B” the area within which plaintiff’s property is located, and added it to business district “A”. This zoning ordinance also provided as follows: “No additional motor vehicle service station or stations shall be constructed or operated within the above described parts of this area of the City of Tallahassee, after the effective date of this ordinance; and further that all locations or cities within said parts or areas of the City now used for motor vehicle service stations shall be discontinued as such on and after January 1, 1949.”
Finally, by zoning Ordinance No. 542, adopted April 27, 1948, the City again changed the area in which plaintiff’s property is located from a business district to a residence district “A”. The above provision of Ordinance No. 334, requiring the discontinuance of the operation of service stations in said area by January 1, 1949, was also made applicable to the area in which plaintiff’s service station is located. It is this ordinance which plaintiff here seeks to enjoin.
There is evidence to the effect that plaintiff has spent considerable money in the construction, operation, and maintenance of its service station since it was first opened for business on or about November 1, 1938, and that the value of its property will be greatly depreciated if it is prohibited under the ordinance from using it for such purpose. However, it' is without dispute that the City of’Tallahassee had authority to enact such zoning ordinances, and that it had exercised such authority prior to plaintiff’s purchase of the property'here involved. Plaintiff originally acquired the property with full knowledge of the right of the City to modify .its zoning ordinances so as to conform to its requirements as a rapidly growing municipality. Moreover, the evidence further shows that other service stations formerly located in the same district where plaintiff’s station is located have ce.ased operation before the deadline '¿given them under the ordinance, and that plaintiff’s station is the only one' of five service stations affected by the zoning ordinance which is still in operation.
The courts have generally recognized that they should not inhibit a reasonable exercise of the zoning power of a municipality carried out pursuant to legislative grant by the state. Moreover, it has been held that a presumption of validity attends the enactment of such zoning ordinances. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497.
Legislation conferring the zoning power upon various Florida municipalities has been repeatedly sustained as constitutional by the Supreme Court of Florida. State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114; State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541; Miami Shores Village v. William N. Brockway Post, No. 124, 156 Fla. 673, 24 So.2d 33. And in such cases, we are not permitted to substitute our judgment for that of the city council, or to question the wisdom or policy of that body in adopting the ordinance under attack, so long as it does not infringe constitutional guaranties. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497; State ex rel. Dallas Inv. Co. v. Peace, 139 Fla. 394, 190 So. 607.
The power of a municipality to require by ordinance the discontinuance of an existing property use also appears to be well established law in Florida. Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819; State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541; State ex rel. Dallas Inv. Co. v. Peace, 139 Fla. 394, 190 So. 607. Here, plaintiff’s service station is near the State Capitol and the State Supreme Court Building, as well as several other state office buildings and a public school. It therefore becomes manifest that its discontinuance under the ordinance cannot be viewed as arbitrary and unreasonable, or as having no relation to the safety and general welfare of the community affected. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348; Ann.Cas.1917B, 927; State ex rel. Henry v. City of Miami, 117 Fla. 594, 158 So. 82; See also, Texas Co. v. City of Tampa, 5 Cir., 100 F.2d 347; Marblehead Land Company v. City of Los Angeles, 9 Cir., 47 F.2d 528.
We find no merit in appellant’s contention that enforcement of this ordinance would entail any unjust discrimination, or would be tantamount to depriving it of its property without due process merely because the site was acquired and improved at considerable expense before the zoning ordinance was enacted. The general rule here applicable is that considerations of financial loss or of so-called “vested rights” in private property are insufficient to outweigh the necessity for legitimate exercise of the police power of a municipality. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348; Ann.Cas.1917B, 927; Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L R. 1016; Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819; See also, State ex rel. Oil Service Co. v. Stark, 96 W.Va. 176, 122 S.E. 533; Atlantic Coast Line R. R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721; Chicago & A. R. Co. v. Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 204; Cf. City of West Palm Beach v. Edward U. Roddy Corporation, Fla., 43 So.2d 709.
The judgment is
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_usc2sect
|
4208
|
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".
Juan KELSEY, Appellant, v. UNITED STATES of America.
No. 72-2009.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) July 25, 1973.
Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973.
Decided Sept. 13,1973.
Harry S. Tischler, Asst. Defender, Defender Ass’n of Philadelphia, Philadelphia, Pa., for appellant.
Robert E. J. Curran, U. S. Atty., Carmen C. Nasuti, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Submitted Under Third Circuit Rule 12(6) July 25, 1973
Before SEITZ, Chief Judge, and AL-DISERT, Circuit Judge.
Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
Before SEITZ, Chief Judge, and AL-DISERT and HUNTER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Where defense counsel erroneously informs a defendant entering a plea of guilty that sentences in a bank robbery charge could be pyramided into a 75-year maximum, can it be said that the guilty plea was entered “voluntarily after proper advice and with full understanding of the circumstances”? Following an evidentiary hearing in a § 2255 proceeding, the district court found that “any error was harmless beyond a reasonable doubt.” We reverse.
Critical to the pronouncement of any sentence on multicount indictments under the federal bank robbery statute, 18 U.S.C. § 2113, is the avoidance of improper pyramiding punishment authorized for the violation of various sections of the statute. The district court appears to have acknowledged that the information furnished appellant was erroneous, but reasoned that at thé time of the reception of the plea the clear guidelines of United States v. Conway, 415 F.2d 158 (3d Cir. 1969), had not yet been announced. Such an approach does not appear to recognize that Conway simply applied the teachings of Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), a decision handed down twelve (12) years prior to the plea in this case. We deem as inapplicable to these proceedings the doctrine of Brady v. United States, 397 U. S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that a subsequent change in the law which greatly reduces the possible sentences which might have been imposed does not vitiate a previously entered guilty plea. The clarification of the law did not originate in Conway, it stemmed from Prince.
In United States v. Jasper, 481 F.2d 976 (3d Cir., 1973), we reported that “the court’s first advice gave too low a maximum, the statement by the Assistant United States Attorney assumed, contrary to Prince that the sentence could be pyramided, and the court, while finally stating the correct maximum on each count, did not correct the pyramiding; misstatement.” We held that defendant’s acknowledgment that he understood this colloquy “is hardly sufficient to indicate that he knew the real potential consequences of his plea.” (481 F.2d 981.) Moreover, we are convinced that the controlling principle is that stated in Berry v. United States, supra, 412 F.2d at 191: “Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action.” The appellant having been told that the maximum sentence was 75 years, when in fact the maximum was considerably less than that, we are persuaded that there was not total compliance with F.R.Cr.P. 11, McCarthy v. United States, supra, and that he did not enter his plea with “understanding of the . . . consequences of the plea.”
The plea of guilty will be vacated, the sentence imposed thereon will be vacated, and the proceedings remanded with a direction to permit appellant to plead anew.
. Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969), citing United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968).
. Appellant entered his plea October 23, 1969, subsequent to McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and was sentenced to 25 years imprisonment pursuant to 18 U.S.C. § 4208(b). The sentence was modified on January 15, 1970, to imprisonment for a period of 7 years under the provision of 18 U.S.C. § 5010(c) of the Youth Corrections Act.
. In Prince the defendant had been sentenced to 20 years for robbery of a federally insured bank and 15 years for entering the bank with the intention to commit a felony. The Court held that “when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years, but that, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent.” 352 U.S. at 329, 77 S.Ct. at 407.
In this case, appellant was indicted in four multiple counts charging a violation of 18 U.S.C. § 2113(a), (b) and (d). Count one charged a taking by force and violence the sum of $474.00 belonging to the bank, a violation of (a). Count two also referred to (a), charging an entering of the bank to commit a felony. Count three charged a violation of (b), the actual taking. Count four charged a violation of (d), “putting in jeopardy” the lives of others while committing (a) and (b). In the statutory text, a violation of (a) calls for a penalty of 20 years for the robbery clause, or the entering clause. Section (b), the larceny clause, calls for a 10-year penalty. Section (d) is the use-of-firearm clause with its 25-year penalty.
The following colloquy took place at the plea:
THE COURT: Do you know on each of those counts if you enter a plea of guilty you could be sentenced to a term of imprisonment of 20 years and/or a fine of $5,000.00; do you understand that?
APPELLANT: Yes, Sir.
DEFENSE COUNSEL: Your honor, I believe it is 20 years on the first two counts, and 25 years on the fourth count, a total of 75 years.
THE COURT: All right, I stand corrected.
Do you understand that, Mr. Kelsey, 20 years on the first two counts, 10 years on the third count and 25 years on the fourth count?
APPELLANT: Yes, sir.
Without dissecting the entire colloquy, we note that the use of the 75 years by defense counsel had the capability of being interpreted as follows: count one, 20 years; count two, 20 years; count three, 10 years; count four, 25 years, or a total of 75 years. By the court’s statement: “All right, I stand corrected,” the court unwittingly endorsed the erroneous computation of appellant’s counsel. Prince flatly held that there could not be an accumulation of sentences on counts one and two.
In any event, the government does not in its brief suggest that appellant was not misinformed, but contends that this was harmless error.
. In dissent, Judge Van Dusen stated: “On the facts presented by this record, I would apply the holdings in the Fifth and Tenth Circuits that misinformation, given to a defendant at arraignment by a district judge, which indicates a possible longer sentence than the law permits does not invalidate a plea of guilty entered after receipt of such misinformation. United States v. Woodall, 438 F.2d 1317, 1329 (5th Cir. 1971) ; Murray v. United States, 419 F.2d 1076, 1079 (10th Cir. 1969).” 481 F.2d at 984. The majority rejected his view.
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_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Roy H. HAMM, Defendant-Appellant.
No. 85-1362.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 23, 1985.
Decided March 26, 1986.
Ronald Lee Bell, Deerfield, 111., for defendant-appellant.
Paul L. Kanter, U.S. Atty. Office, Dan-ville, 111., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation.
GRANT, Senior District Judge.
A jury convicted defendant-appellant of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. The jury acquitted him of a second count charging possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The trial court sentenced him to twelve years’ imprisonment. We affirm the conviction, but remand the case for resentencing.
Facts
In October 1984, agents of the Illinois Department of Law Enforcement, Division of Criminal Investigation, were conducting an undercover narcotics investigation into the activities of Schiavone, a co-defendant in the instant case who pled guilty. The Department suspected Schiavone of narcotics trafficking in the Kankakee, Illinois area.
During the course of the investigation, agent Grant sought to purchase one kilogram of cocaine from Schiavone. When agent Grant refused to help finance Schiavone’s purchase of the cocaine, Schiavone borrowed $25,000 from Savinski, a Michigan City, Indiana, friend who was the other co-defendant in this case and who also pled guilty. Savinski learned of the purpose of the loan some days later and, when Schiavone appeared to be having trouble finding a supplier of the cocaine, Savinski suggested defendant-appellant Hamm.
Savinski contacted Hamm and told him that Schiavone had a purchaser for ten kilograms of cocaine. Hamm later confirmed the availability of a quantity of cocaine and indicated that his source of the cocaine was “Columbians.” Savinski passed this information to Schiavone who passed it to agent Grant.
On October 23, 1984, Schiavone and agent Grant met in a room at the Bradley, Illinois, Holiday Inn. They called Savinski at Gratty’s, a Michigan City bar, to finalize their transaction. They informed Savinski that agent Grant wished to purchase one, rather than ten, kilograms of cocaine and that agent Grant did not want to travel from the Kankakee area to complete the deal. Savinski told Hamm, who was with him at Gratty’s, about the changes in the plan. Hamm made a phone call and told Savinski that the changes were acceptable. Savinski called Schiavone a short time later and worked out the remaining details.
Hamm and Savinski met the next morning to leave for Kankakee. Hamm carried a duffle bag and asked Savinski if he wanted to check it before they left. Savinski declined. While Hamm and Savinski drove in Savinski’s van to Kankakee, Schiavone and agent Grant awaited their arrival in the Bradley Holiday Inn.
At approximately 1:00 P.M., Savinski called Schiavone at the Holiday Inn and told Schiavone that they were waiting for him at the Bonanza Restaurant on Court Street in Kankakee. Schiavone left to meet them. Savinski waited for him in the restaurant. Hamm waited in the van. Schiavone met Savinski in the restaurant and, after briefly discussing the money still owed Savinski by Schiavone, the two went to the van where Schiavone met Hamm.
From the front passenger seat, Hamm handed the duffle bag to Schiavone who was sitting in the rear seat. Schiavone checked the contents and returned to agent Grant at the Holiday Inn to get the money. Whereupon agent Grant arrested him. A short time later, other agents arrested Schiavone and Hamm in the restaurant parking lot. In a search of the van subsequent to the arrest, agent King found the duffle bag which contained 994.1 grams of 78.8% pure cocaine.
Hamm’s arraignment occurred on December 4, 1984. On January 3, 1985, all three defendants viewed a video tape of the arrest. On January 8, Hamm filed a Motion to Suppress the cocaine based upon the lack of probable cause for the search of the van and the coercion of Schiavone who told the agents where they could find the cocaine. On January 9, the trial court ordered that all pending motions would be heard on January 14, the day of trial.
At the hearing on the motions, the trial court denied Hamm’s Motion to Suppress. When Hamm learned that his co-defendants had entered into plea agreements, he moved for a continuance of trial which the court also denied. Instead, the trial court delayed the jury selection and the beginning of the Government’s case to allow Hamm an opportunity to consult with his attorney. The jury found him guilty and he appeals.
Issues
Hamm presents three issues on appeal:
I. Whether the trial court abused its discretion in denying Hamm’s Motion for Continuance;
II. Whether the trial court erred in denying Hamm’s Motion to Suppress the cocaine; and,
III. Whether the trial court properly considered Hamm’s challenge regarding information contained in the presentence investigation report?
I. Whether the trial court abused its discretion in denying Hamm’s Motion for Continuance?
Savinski and Schiavone entered pleas of guilty on the morning of trial. Hamm’s counsel moved for a continuance seeking time to compare their statements to the evidence as he already knew it. Instead of granting a continuance, the trial court delayed the selection of the jury until that afternoon and postponed the beginning of the Government’s case until the next morning. The trial court felt that this delay would provide Hamm’s counsel sufficient time to compare the former co-defendants’ testimony with the 18 U.S.C. § 3500 material he had received three days earlier. Transcript at 3.
This Court may review the trial court’s denial of a request for a continuance only for an abuse of discretion. To establish an abuse of discretion, Hamm must show that actual prejudice resulted from the denial. United States v. Rodgers, 755 F.2d 533, 539 (7th Cir.), cert. denied, — U.S. —, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985); United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir.1980). Hamm claims that ineffective assistance of counsel resulted from the denial of the continuance. Therefore, this Court must inquire into Hamm’s counsel’s actual performance at trial. Rodgers, 755 F.2d at 540. We measure counsel’s performance by the totality of the circumstances as revealed by the trial transcript. United States v. Flick, 719 F.2d 246, 248 (7th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2178, 80 L.Ed.2d 560 (1984). The transcript reveals that Schiavone and Savinski did not present testimony so complicated that Hamm’s counsel required a great amount of time or expert assistance to understand it. Trial counsel conducted extensive and effective cross-examination of both Schiavone and Savinski. He challenged their versions of the facts and attempted to impeach their credibility. We conclude that Hamm’s counsel’s trial performance surpassed the minimum professional standards. Therefore, no prejudice resulted to Hamm. Rodgers, 755 F.2d at 541.
II. Whether the trial court erred in denying Hamm’s Motion to Suppress the cocaine?
The trial court arraigned Hamm on December 4, 1985. The Order for Pretrial Discovery and Inspection directed that motions “be filed within fifteen (15) days of the arraignment (or such later time as may be set by the Court).” Record at 20. On January 8, 1985, after viewing a video tape of the arrest, Hamm filed his Motion to Suppress. Hamm based his motion on an alleged violation of Schiavone’s fifth amendment rights. Id. at 38. When the trial court considered the motion on the morning of trial, Hamm’s counsel stated that he was basing the motion on information received from Schiavone’s and Savinski’s counsels through their innuendoes. Transcript at 5. After discussing the motion, the trial court, finding that it had no merit, denied it for being untimely filed. Id. at 8.
“Failure by a party to raise defenses ... at the time set by the court ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Fed.R.Crim.P. 12(f). A trial court has discretion when considering an untimely motion and a reviewing court may disturb the trial court’s decision only for clear error. United States v. Mangieri, 694 F.2d 1270, 1283 (D.C.Cir.1982). In order to gain relief under Rule 12(f), a party must present a legitimate explanation for his failure to make a timely motion, United States v. Davis, 663 F.2d 824, 831 (9th Cir.1981), and absence of prejudice, Brooks v. United States, 416 F.2d 1044, 1048 n. 1 (5th Cir.1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970). “[Ajbsence of prejudice by itself may justify a district court’s refusal to grant relief from the waiver resulting from non-timely filing____” United States v. Hirschhorn, 649 F.2d 360, 364 (5th Cir.1981) (citing Brooks, 416 F.2d at 1048 n. 1).
In the instant case, this Court finds no prejudice and, therefore, will not disturb the trial court’s denial of the untimely motion. First, Hamm based his Motion to Suppress on an alleged violation of Schiavone’s rights. “A defendant ‘may not obtain exclusion of evidence on ground that someone else’s rights were violated.’ ” United States v. Davies, 768 F.2d 893, 897 (7th Cir.) (quoting United States v. Williams, 737 F.2d 594, 616 (7th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1354, 84 L.Ed.2d 377, (1985)), cert. denied, — U.S. —, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985). Second, a trial court need only grant a suppression hearing when a defendant presents facts justifying relief, that is, facts which are definite, specific, detailed and nonconjectural. United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.), cert. denied, — U.S. —, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985); United States v. Harrelson, 705 F.2d 733, 737 (5th Cir.1983). The facts alleged by Hamm fail to meet this standard.
III. Whether the trial court properly considered Hamm’s challenge regarding information contained in the presentence investigation report?
At the sentencing hearing, Hamm challenged several items in the presentence investigation report. Those items included an allegation by Savinski that Hamm had contracted for Savinski’s murder, a probation violation charge which occurred when Hamm was arrested for a murder, a probation violation charge for possession of a gun, an offense in which Hamm was charged with conspiracy to commit burglary, assault and battery, intent to kill, and committing a felony while armed, and the opinion of a probation officer that Hamm had no legitimate source of income. Hamm informed the trial judge that he had not contracted for Savinski’s murder, that neither of the alleged probation violations had been prosecuted or affected his probation, that the alleged offense had resulted in a prosecution and conviction for voluntary manslaughter, and that he derived legitimate income from manufacturing custom-made clocks. The Government declined to question Hamm and, in its argument, stated that it found the presentence report to be very complete and thorough. The trial court denied Hamm’s motion to strike the contested material from the presentence investigation report and, in sentencing Hamm, declared that he was an outlaw. See Transcript at 233-48.
In United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), a case heard on the same day as the instant case, this Court, relying on United States v. Rone, 743 F.2d 1169 (7th Cir.1984), and Rule 32, Federal Rules of Criminal Procedure, stated:
Rone requires that the sentencing judge ask the defendant three questions in order to comply with Rule 32: (1) whether the defendant has had an opportunity to read the report; (2) whether the defendant and defense counsel have discussed it; and (3) whether he or she wishes to challenge any facts in the report. Id. at 1174. This questioning process establishes a record reflecting that the defendant has had a realistic opportunity to read, discuss, and object to the report.
If the defendant disputes a fact in the report, the requirements of subsection (D) are triggered. Rone, 743 F.2d at 1175. The sentencing judge is then obligated either to make written findings concerning the disputed matter or a written determination that the disputed matter will not be relied on for sentencing, and then attach it to the presentence report. Id. at 1175. These procedures, when strictly followed, ensure that the defendant's sentence is based on accurate and reliable information and that subsequent recipients of the report are aware of whatever resolutions occurred at sentencing.
... Thus all a defendant needs to show in order to be resentenced for a violation of Rule 32(c)(3)(D) is that (1) allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing.
Eschweiler, 782 F.2d 1385, 1389 (citations omitted) (footnotes omitted). In this case, the trial court made neither findings regarding the controverted matters nor a determination that the information would not be used in sentencing. Rule 32(c)(3)(D) compels us to remand the case for resentencing.
Conclusion
This Court Affirms Hamm’s conviction, but Remands the case for resentencing consistent with the procedures set forth in Eschweiler and Rule 32(c)(3)(D), Federal Rules of Criminal Procedure.
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_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.
Benjamin HEMPHILL, Appellant, v. UNITED STATES of America, Appellee.
No. 18936.
United States Court of Appeals Eighth Circuit.
April 2, 1968.
Kenneth V. Byrne, St. Louis, Mo., for appellant.
John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the brief.
Before MATTHES, GIBSON and HEANEY, Circuit Judges.
MATTHES, Circuit Judge.
Benjamin Hemphill has appealed from a judgment of conviction entered pursuant to a jury verdict finding him guilty of the unlawful sale of heroin without the requisite Treasury form in violation of 26 U.S.C.A. § 4705(a). We affirm.
The government’s case rests primarily on the testimony of a government informer, Mrs. Bernice Taylor, and federal narcotic agent, Richard M. Patch. The informer, at the inducement of Patch, entered into a narcotic purchase arrangement with the defendant under the surveillance of narcotic agents.
The uncontroverted evidence established that on September 9, 1966, pursuant to a telephone conversation between Mrs. Taylor in St. Louis, Missouri and the defendant in Chicago, Illinois, the sum of $360.00 was sent to defendant by telegram in payment for a quantity of heroin which he agreed to deliver to Mrs. Taylor. On September 15, 1966, defendant came to St. Louis from Chicago, and arrived at the Taylor home around 9:45 A.M. Upon entering the Taylor home he placed a package on a table in the kitchen and shortly departed. Immediately thereafter Agent Patch, who had observed the transaction from a secluded position, initialed, sealed and sent the package to a United States chemist in Chicago. Ferris Van Sickle, the chemist who analyzed the contents of the package, testified it contained 4.701 grams of heroin.
In addition to his contention that the district court erred in overruling his motion for judgment of acquittal at the close of the entire case defendant alleges several procedural errors, the cumulative effect of which he contends deprived him of a fair trial. We consider each point seriatim.
Motion for Reduction of Bond
Defendant argues that the court erred in denying his motion for reduction of his bail bond. He contends that the amount of the bond fixed by the United States District Court was excessive in contravention of the Eighth Amendment, that as a result of the court’s action he was unable to make bail, and thus was prevented from properly preparing his defense or otherwise assisting his counsel in the preparation of the case from the confines of his jail cell. Defendant did not appeal from the order denying his application for reduction of the amount of the bond, but rather contends as part of this appeal that he sustained substantial prejudice as the result of the denial of his motion.
In this posture defendant’s appeal from the denial of his motion for reduction of bail comes much too late. It is well settled that the proper procedure for challenging the legality of excessive bail is by motion for reduction of the amount and timely appeal from the order denying such motion. Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Moreover, this Court has consistently refrained from reviewing an order fixing bail, where the question has been initially raised upon appeal from the judgment of conviction. White v. United States, 330 F.2d 811, 815 (8th Cir. 1964), cert. denied, 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58 (1964); Hewitt v. United States, 110 F.2d 1, 6 (8th Cir. 1940), cert. denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409 (1940); cf. United States v. Radford, 361 F.2d 777, 781 (4th Cir. 1966), cert. denied, 385 U.S. 877, 87 S.Ct. 158, 17 L.Ed.2d 105 (1966); Kaufman v. United States, 325 F.2d 305, 306 (9th Cir. 1963).
Defendant urges that the district court erred in overruling several of his pretrial motions. They are (1) motion to dismiss the indictment; (2) motion to suppress evidence; (3) motion for discovery under Rule 16 of the Federal Rules of Criminal Procedure, and (4) motion for disclosure of information “favorable” to the defendant. We conclude that the district court acted properly in denying these motions and that the defendant suffered no prejudice as the result of the denial.
Motion to Dismiss the Indictment
We find no merit whatever in this contention. Treating the well-pleaded facts as true the indictment is legally sufficient on its face to charge a criminal offense under Section 4705(a). It is not so vague or indefinite as to effectively preclude the defendant from defending against it. The bill of particulars furnished by the government afforded all the essential details of the offense. The indictment coupled with the bill of particulars provided defendant with ample notice of the nature of the charges and was sufficient to enable him to plead an acquittal or conviction in bar of any future prosecution for the same offense. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953).
Contrary to defendant’s intimation, the naming of a purchaser of narcotics is not an indispensable element to a charge of the unlawful sale of narcotics. Aggers v. United States, 366 F.2d 744, 746 (8th Cir. 1966), cert. denied, 385 U.S. 1010, 87 S.Ct. 719, 17 L.Ed.2d 548 (1967); Cain v. United States, 349 F.2d 870, 871 (8th Cir. 1965); Moore v. United States, 337 F.2d 350, 351 (8th Cir. 1964), cert. denied, 379 U.S. 994, 85 S.Ct. 712, 13 L.Ed.2d 614 (1965); Taylor v. United States, 332 F.2d 918, 919-920 (8th Cir. 1964); cf. Collins v. Markley, 346 F.2d 230, 232 (7th Cir. 1965), cert. denied, 382 U.S. 946, 86 S.Ct. 408, 15 L.Ed.2d 355 (1965); Clay v. United States, 326 F.2d 196, 198-199 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 (1964).
This same rationale would apply with equal force to the failure of the indictment to specify either the consideration for, or the exact location of the sale. Allegations of consideration or venue are no more essential elements of an indictment than the name of a purchaser. Cf. Flores v. United States, 338 F.2d 966, 967 (10th Cir. 1964); Carbo v. United States, 314 F.2d 718, 733 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Moreover, we fail to perceive how defendant sustained any prejudice as the result of such omissions particularly where, as here, all of this information was supplied through the bill of particulars.
Motion to Suppress
This motion was properly denied. Examination of the record thoroughly refutes the notion that any evidence was unlawfully seized from defendant’s possession. Although the point is not articulately raised in either his brief or motion to suppress, defendant apparently contends that the monitoring by Agent Patch of Mrs. Taylor’s conversation with him on September 9th was improper, and therefore Patch’s testimony with respect to that conversation should have been suppressed. Because of the vagueness of the motion to suppress, and the failure to object to Patch’s testimony relating to the conversation, it is doubtful whether this point has properly been preserved for review. In any event, the Supreme Court has held that the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversation are admissible in federal court. Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957).
Motions for Discovery
Relying upon Rule 16, Fed.R.Crim.P., defendant alleges error in the court’s denial of inspection of (1) reports of scientific experiments conducted in connection with the case and (2) criminal records of all witnesses in the case. An application for relief under the discovery rules, however, is a matter within the sound discretion of the district court and is reviewable only for an abuse of discretion. Gevinson v. United States, 358 F.2d 761 (5th Cir. 1966), cert. denied, 385 U.S. 823, 87 S.Ct. 51, 17 L.Ed.2d 60 (1966). We find no abuse of discretion here, particularly in absence of any showing that defendant was prejudiced. Disclosure of the chemist’s report would not have materially aided in the preparation of the defense. Defendant does not, and in view of the uncontradicted evidence, could not logically assert that the package did not contain heroin. Rather he speculates that the scientific experiments may have disclosed a smaller quantity of heroin than was the subject of the sale. The testimony of the government chemist, Ferris Van Sickle, with respect to his analysis of the package’s contents, does point out such a minor discrepancy. The confusion as to the exact quantity of heroin, however, did not amount to a fatal variance between the indictment and proof. Defendant, moreover, seized upon this' variation in cross-examination and closing argument. Production of the experiment report itself would have disclosed no greater revelation.
The assertion that the government should have informed the defendant prior to trial of the criminal record of the government’s witnesses is utterly lacking in merit, and requires no further comment.
The district court properly denied defendant’s attempt to achieve a wholesale disclosure of the government’s case by his motion for disclosure of evidence “favorable” to the accused. Despite the broad language of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), upon which defendant bases his motion, there is nothing in this record even remotely suggesting that the government has suppressed material evidence favorable to the defendant. His position therefore is not akin to the aggravated situation condemned in Brady v. State of Maryland, supra, where the prosecution in the trial of the accused suppressed a confession of an accomplice admitting the actual homicide. Cf. United States v. Wilkins, 326 F.2d 135 (2d Cir. 1964) (prosecution required to disclose existence of two disinterested eyewitnesses who would have testified that defendant was not a participant in the robbery charged). Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964) (suppression of exculpatory evidence in the nature of ballistics reports and fingerprint tests tending to show that a revolver not belonging to the accused was used in the crime held to be a denial of due process),
Motion for Bill of Particulars
The district court granted and denied in part defendant’s motion for a bill of particulars. He asserts error concerning that portion of the motion that was denied. We hold that the district court acted within its discretion in limiting the scope of the bill of particulars. The bill of particulars that was furnished precisely apprised the defendant of the nature of the charge against him with sufficient clarity and specificity to enable him to prepare for trial. That portion of the motion wherein the defendant sought to determine the manner in which the sale of narcotics took place concerns evidentiary matters. Acquisition of evidentiary detail is not the function of the bill of particulars. Ross v. United States, 374 F.2d 97, 103-104 (8th Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 130, 19 L.Ed.2d 177 (1967); Ray v. United States, 367 F.2d 258, 263 n. 5 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967).
Motion for Continuance
On the morning of trial the defendant orally moved for a continuance to secure time in which to check where and to whom certain telephone calls to Chicago were made. He asserts error in the court’s denial of this motion. Apart from the question as to the sufficiency of the motion because of its vagueness, we find no substance in this assignment of error. It is a well settled rule that a motion for a continuance is addressed to the sound discretion of the trial judge, the exercise of which will ordinarily not be reviewed. Stamps v. United States, 387 F.2d 993 (8th Cir. 1967); Butler v. United States, 351 F.2d 14, 18-19 (8th Cir. 1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966); Ray v. United States, 197 F.2d 268, 270-271 (8th Cir. 1952). Considering counsel’s ample opportunity prior to trial to investigate the matters concerning which he sought a continuance we find no clear abuse of discretion in its denial.
Motion for Judgment of Acquittal
In view of the uncontroverted evidence relating to defendant’s guilt we find this assignment of error patently lacking in merit. His sole defense to the charge against him was an attack on the credibility of government informer, Mrs. Taylor. The jury chose to believe Mrs. Taylor, whose testimony was substantially corroborated by Agent Patch. On the record as a whole there is unquestionably substantial evidence to support the verdict.
The judgment of conviction is accordingly affirmed.
. Defendant was arrested in Chicago, Illinois where bond had been originally set at $5,000.00. Subsequently, upon a motion for reduction, the United States District Court for the Northern District of Illinois reduced the amount of the bond to $1,000.00. Defendant then secured his freedom by posting a cash deposit of $100.00 in lieu of the bond. In his appearance on May 15, 1967 before the United States District Court for the Eastern District of Missouri in St. Louis to answer the indictment that court, cognizant that the defendant had previously received a ten year term of imprisonment for violation of the narcotics law, increased the amount of the bond to $5,000.00 and placed defendant in the custody of the United States Marshal.
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_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Francis E. HOLMAN and Eloise F. Holman, his wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. William M. HOLMAN and Emily L. Holman, his wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
Nos. 76-3671, 76-3672.
United States Court of Appeals, Ninth Circuit.
Nov. 3, 1977.
William M. Holman, Seattle, Wash, (argued), for appellants.
Gilbert S. Rothenberg, Dept, of Justice, Washington, D.C. (argued), for appellee.
Before WALLACE and SNEED, Circuit Judges, and BOLDT , District Judge.
Hon. George H. Boldt, Senior United States District Judge for the Western District of Washington, sitting by designation.
SNEED, Circuit Judge:
Francis E. Holman and William M. Holman were partners in a law firm from which, pursuant to the terms of the partnership agreement, they were expelled. As a consequence, again pursuant to the partnership agreement, they received in the taxable years of 1969 and 1970 certain amounts for their interests in the partnership “inventory” which the partnership agreement defined to mean “accounts receivable” and “unbilled services.”
The Holmans argue that these amounts in their entirety are entitled to be taxed as capital gains. The Commissioner insists that these amounts should be taxed as ordinary income. The Tax Court agreed with the Commissioner, Francis E. Holman, 66 T.C. 809 (1976), and so do we.
The position of the Holmans is not lacking in ingenuity. Essentially it is that these payments, having been made pursuant to an “expulsion” rather than because of a partner’s death, retirement, or his transfer of his partnership interest, escape the reach of sections 736 and 751 of the 1954 Internal Revenue Code and perforce must be governed by the final sentence of section 731(a). That sentence reads:
“Any gain or loss recognized under this subsection shall be considered a gain or loss from the sale or exchange of the partnership interest of the distributee partner.”
Inasmuch as their partnership interest constituted a capital asset the Holmans contend that this sentence dictates that the amounts in question be treated as capital gain.
The Commissioner’s contention is that the payments do not escape the reach of sections 736 and 751 and that as a consequence the tax characteristics of the amounts are governed by those sections and not by the final sentence of section 731(a). Insofar as section 736 is concerned, the Commissioner insists that each of the taxpayers was a “retiring partner” in receipt of a “guaranteed payment,” as described in section 736(a)(2), which constituted payment for “unrealized receivables of the partnership” as employed in section 736(b) and defined in section 751(c). Such payments, pursuant to section 736(b) are not “in exchange for the interest of such partner in the partnership” and thus not entitled to capital gains treatment. The applicable regulation supports the Commissioner. It provides that “A partner retires when he ceases to be a partner under the local law.” Income Tax Reg. § 1.736 — l(a)(l)(ii).
We hold that the Commissioner’s analysis, with which the Tax Court agreed, is correct. We do this because we are convinced that Congress in this context did not intend to draw a distinction between a partner who voluntarily withdraws from a partnership because of age or other reasons and a partner who is expelled from the partnership. The above quoted regulation correctly reflects that intention. Moreover, an interpretive regulation, not unreasonable and not obviously inconsistent with the statute, should be given effect. See Kean v. Commissioner of Internal Revenue, 469 F.2d 1183 (9th Cir. 1972).
An interpretation which recognized the distinction between retirement and expulsion for the purpose of permitting payments on expulsion to be taxed as capital gains, while identical payments on retirement would be taxed as ordinary income, would bear no sensible relationship to the purposes reflected by the séetions of the Code involved here. Congress intended that payments by a partnership to a partner for his share of the partnership’s receivables should be taxed as ordinary income to the recipient and not taxed at all to the remaining partners. Cf. 1 Willis, Partnership Taxation, § 46.01-46.03 (1976). This purpose is furthered by the Commissioner’s interpretation; it would be frustrated to a degree by that of the taxpayers. We have no desire to encourage the use of “expulsions” to circumvent the normal operation of sections 731, 736 and 751.
AFFIRMED.
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_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
MCA, INC.; Cass County Music Company; Kortchmar Music; April Music, Inc.; BGO Music, Inc.; Sailor Music; Hudmar Publishing Company, Inc.; Coolwell Music; Granite Music Corporation; Brockman Music; Stygian Songs; and Controversy Music, Plaintiffs-Appellees, v. Norma PARKS and Irene Parks, Defendants-Appellants.
No. 85-5651.
United States Court of Appeals, Sixth Circuit.
July 24, 1986.
Jerry D. Winchester (argued), Corbin, Ky., for defendants-appellants.
Kimberly K. Greene, Wyatt, Tarrant & Combs, Louisville, Ky., Edgar A. Zingman (argued), for plaintiffs-appellees.
Before CONTIE and RYAN, Circuit Judges, and BROWN, Senior Circuit Judge.
BAILEY BROWN, Senior Circuit Judge.
This appeal of a judgment of copyright infringement asks the musical question whether it is as true in 1986 as it was in 1942 that “we ... just need a nickel to feed that jukebox Saturday night”? The district court answered this question in the negative, finding that the cost of operating a jukebox that is the sole source of music in a roller-skating rink now also includes the obligation of the defendants-owners of that skating rink to pay royalties to copyright holders whose songs are played on “that jukebox.” Concluding that the district court correctly construed the copyright statute in finding a violation, we affirm.
I
Plaintiffs-appellees in this consolidated action are owners of song copyrights and members of the American Society of Composers, Authors and Publishers (ASCAP). The copyright owners sued defendants-appellants Norma, John and Irene Parks (the Parks), the owners and operators of Gerry’s Roller Skating Rink in Corbin, Kentucky (Gerry’s), for infringement of rights granted them under the United States Copyright Act, 17 U.S.C. §§ 101 et seq. (1982), as amended by Pub.L. 94-553, Title I, § 101, 90 Stat. 2541 (Oct. 19, 1976). The facts are not in dispute, and the district court ruled in favor of the copyright owners on cross-motions for summary judgment. The parties agree that the record is sufficiently complete to permit resolution of this case on their respective motions.
Gerry's is located inside a building that also houses a concession stand, video games and the allegedly offending jukebox, which contains recordings of, inter alia, the copyright owners’ copyrighted songs. Patrons pay no admission fee to enter the Parks’s building, where they are free to play the video games or jukebox, purchase food or drink, or simply listen to the music. Upon entering the building, patrons may turn right to the concession area (where the jukebox and video games also are located), or left to the booth where skating tickets are sold. The skating area is immediately ahead of the entrance, through a set of double doors. Patrons who wish to skate pay a $2.00 “skating fee,” plus an additional $.50 if they rent skates.
Anyone in the building may, by depositing coins, play the jukebox, which is owned and operated by an outside organization. Music emanates from the jukebox itself, as well as from six large speakers that are inside and surround the skating area. Music from the jukebox provides the only accompaniment to skaters, there being no organ or other source of music. Thus, unless someone plays the jukebox, the skaters skate without music, and in her deposition, Norma Parks indicated that on some nights this occurs.
After consideration of the parties’ briefs, depositions and affidavits, the court determined that Gerry’s did not qualify for the so-called jukebox exemption from Copyright Act liability. 17 U.S.C. § 116 (1982). This section relieves “the proprietor of the establishment in which the public [jukebox] performance takes place,” 17 U.S.C. § 116(a)(1), from liability for copyright infringement as long as the jukebox “is located in an establishment making no direct or indirect charge for admission.” 17 U.S.C. § 116(e)(1)(B). The court based its decision on the legal conclusion that “the charging of a skating fee constitutes a direct or indirect charge for admission,” reasoning that the use of the jukebox was “closely related” to skating, the “primary purpose” of the establishment. MCA, Inc. v. Parks, Nos. 83-163/84-185, mem. op. (E.D.Ky. June 13, 1985). The district court therefore enjoined the Parks from further use of the jukebox in their establishment until they obtained an ASCAP license and began paying royalties to these plaintiffs. The court also awarded damages ($3,000.00) for past infringements and attorney’s fees ($4,457.50) and costs in connection with the litigation. On appeal, the Parks contend that the district court erred in concluding that their establishment is not entitled to the jukebox exemption, and also challenge the award of attorney’s fees.
II
The principal issue on appeal is the validity of the district court’s conclusion that Gerry’s is “an establishment making ... a direct or indirect charge for admission.” 17 U.S.C. § 116(e)(1)(B). Since none of the facts are in dispute, the question is one simply of law.
The legislative history to the 1976 amendments to the Copyright Act reveals that § 116 represented a compromise between the previous statute and the legislation preferred by ASCAP and its members. The prior statute contained an absolute exemption from copyright liability arising from any use of a jukebox, “unless a fee is charged for admission to the place where such reproduction or rendition occurs.” H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 1, 112, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5727. The House report accompanying the 1976 amendments indicates that “[n]o provision of the present law has attracted more heated denunciations and controversy than the so-called jukebox exemption.” Id. Accordingly, the amended statute retained the exemption only for proprietors of establishments where jukeboxes are played (not for the owners of the jukeboxes), and then only if no “direct or indirect” admission fee is charged.
Under current law then, the owner of the jukebox in question is liable for license fees and royalties to the appropriate ASCAP members; but the Parks would be liable only if their “skating fee” were regarded as a direct or indirect .admission charge.
The legislative history provides only a little guidance into what Congress meant by “direct or indirect charge for admission.” Explaining the language, the committee report indicates that the exemption would not cover “establishments making cover or minimum charges, and those ‘clubs’ open to the public but requiring ‘membership fees’ for admission.” Id. at 5729.
This explanation appears clearly to exempt most establishments such as diners and restaurants, barber and beauty shops, stores and shopping malls, and video and pinball arcades. Such establishments almost never charge “direct” admission fees, and it would render the exemption meaningless to describe the food, gaming or cosmetology charges as “indirect” admission fees. The copyright owners concede as much in their brief.
Equally clearly, the exemption would not cover taverns, nightclubs, social clubs or restaurants if they required patrons to pay an admission fee at the door, or if they otherwise added an entertainment “cover” or “minimum” charge to food and drink bills. At least one district court case has imposed jukebox liability on this kind of establishment. Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474 (D.Del.1985) (owner of bar featuring live music held liable for jukebox use on nights when admission was charged to hear the live band). The case is easily distinguished, because there is no question that the bar in Moor-Law was charging a direct admission fee; however, in the case sub judice, we are not concerned with construction of the “direct” admission charge language in the statute. The copyright owners’ arguments notwithstanding, the “skating fee” at issue plainly is not a “direct” charge for admission, since it is uncontested that persons are admitted to Gerry’s without payment of the fee. Our task, rather, is to devise a standard for measuring when a fee— charged by an establishment that concededly admits persons without charge — should be treated as an “indirect charge for admission.”
In formulating this standard, we lack the benefit of prior judicial decisions. We are guided by the legislative history, which clearly indicates that a “cover” or “minimum” entertainment charge at a tavern or restaurant amounts to an indirect admission charge. Likewise, we agree with the Parks that, as the copyright owners concede, charges for food and drink in an ordinary bar or restaurant would not amount to an indirect admission charge. Such an expansive reading of the statute would effectively eliminate the jukebox exemption, a result plainly not contemplated by Congress.
The standard for identifying an “indirect” admission charge must take account of these two extremes. If the purported admission fee is more clearly analogous to a simple charge for food or drink, then it will not impose copyright liability on the proprietor of the establishment; however, if the charge is more properly characterized as a cover or minimum, the jukebox exemption will not apply. In other words, when an establishment arguably exempt under § 116 charges for an item, be it food, drink or some service, that charge will constitute an “indirect charge for admission” only if the nexus between the jukebox music and the purported “admission” charge is immediate and direct, so close as to be in the nature of a “cover” or “minimum” entertainment charge.
Determining which of these extremes— mere food or drink, or a “cover” charge— the “skating fee” charged by Gerry’s most closely resembles is no easy task. Like a restaurant, Gerry’s provides, for a charge, an item desired by its patrons, who pay nothing to enter the establishment. However, the copyright owners argue, and the district court concluded, that this case can be distinguished from the restaurant case because here, the music is “closely related” to the business of the skating rink. The argument must go: while consumers choose to patronize a restaurant or bar based on the cost and quality of food and drink, service and ambiance, consumers generally choose to patronize a skating rink to skate to music. This argument would not necessarily be in disagreement with Justice Holmes’s observation, made in construing an earlier incarnation of the Copyright Act, that patrons of a restaurant often make their choice seeking “a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal.” Herbert v. Shanley, 242 U.S. 591, 595, 37 S.Ct. 232, 233, 61 L.Ed. 511 (1917). But as we have already observed, when a court seeks to characterize a fee as an indirect admission charge, the nexus between the purported “admission charge” and the music on the jukebox must be closer than a simple interest in listening to music while dining or drinking.
We are satisfied that such a nexus exists in this case. Although there was testimony that on occasion, patrons at Gerry’s have skated without the accompaniment of music from the jukebox, skating at a skating rink, like dancing at a dance hall, is an activity traditionally and usually associated with musical accompaniment. It seems undeniable that it was the well-known preference of skaters for such accompaniment that led the Parks to position all six of the jukebox’s external speakers immediately around the perimeter of the skating area, with only the speaker that is a physical part of the jukebox itself even arguably aimed at providing music outside the skating area.
Under these circumstances, we think the nexus between the music and skating at Gerry’s may not be “essential,” as argued by the copyright owners; but it is far closer than any similar relationship between music and dining at a tavern or restaurant. There is little doubt that the absence of jukebox music would more dissuade the average roller skater from attending Gerry’s than the average restaurant goer from visiting a similarly silent eating establishment. Because the close nexus between the skating charge and the music at Gerry’s so nearly resembles that between a “cover” charge and the entertainment “covered” by that charge, we hold that the “skating fee” charged by Gerry’s constitutes an “indirect charge for admission” within the meaning of the statute. It follows that the district court correctly found the Parks to be in violation of the Copyright Act.
III
The Parks also argue that even if the judgment against them stands, they should not have been required to pay over $4,000.00 in attorney’s fees.
The Copyright Act permits a trial court, in its discretion, to award attorney’s fees to the prevailing party. 17 U.S.C. § 505 (1982). While the statute on its face imposes no additional requirements, the Ninth Circuit has held that attorney’s fees may be awarded under the Copyright Act only upon a finding of bad faith. Cooling Systems and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 498 (9th Cir.1985). Other circuits are not in agreement, and the Eleventh Circuit has specifically held that the plain statutory language imposes no such requirement. Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 832 (11th Cir.1982). See also Lieb v. Topstone Industries, Inc., 788 F.2d 151, 154-56 (3d Cir.1986) (noting circuit split on necessity of finding bad faith, and suggesting that district courts exercise “an even-handed approach,” relying on several factors including frivolousness, motivation, objective unreasonableness, and the need in particular circumstances for compensation and deterrence).
The proper standard for an award of an attorney’s fees is not, however, before us in this case. At oral argument, counsel for the Parks was repeatedly questioned as to whether he contended that some “bad faith” .standard should be adopted by this court:
The Court: I guess we can glean from what you’re saying that they [copyright owners] have to show bad faith or something more than just that you’re wrong in order to get fees?
Counsel: No, they can show we’re wrong____
******
The Court: Well then are you conceding that if they win on the merits, they also win on the attorney’s fees?
Counsel: They should be entitled to some, sort of attorney’s fees.
The Court: Alright, that solves that. ******
Counsel for the Parks further conceded that he did not challenge the reasonableness of the awards in this case. Rather, counsel admitted that his only quarrel was with the statutory scheme, which, he argued, might permit copyright owners, by repeated visits to an offending establishment, to aggregate a large number of “violations,” and thereby increase their damages and attorney’s fees for essentially the same violation. However, counsel did not even contend that such compounding of violations occurred in this case. Thus, we need not consider whether such action would call for some narrowing of the attorney’s fees portion of the statute.
In light of these concessions from the Parks’s counsel, we need not, and expressly do not, reach the question of the proper standard to be applied by a trial court in awarding attorney's fees under § 505 of the Copyright Act. While the case might otherwise have presented an appropriate vehicle for an answer to this question, our adversary system of justice forbids us to resolve issues not contested by the parties. Since the Parks have conceded the propriety of this award of attorney’s fees if the trial court correctly found a violation; and since we have already determined that the trial court was correct in this regard, we hold that the award of attorney’s fees was proper under the circumstances of this case.
Accordingly, we Affirm the judgment of the district court in all respects.
. A1 Stillman and Paul McGrane, "Jukebox Saturday Night” (1942).
. ASCAP is a performing rights licensing organization that licenses users of copyrighted music and distributes royalties to its members, including these plaintiffs. See generally Broad cast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 4-6, 99 S.Ct. 1551, 1554-55, 60 L.Ed.2d 1 (1979) (describing licensing and royalty procedures).
. The original complaint named as defendants only John and Norma Parks. On April 20, 1984, the plaintiffs filed an amended complaint adding Irene Parks as a party defendant. Claims against defendant John Parks were dismissed on September 11, 1984.
. Although the Fourth Circuit, in an unpublished decision, has imposed copyright liability on essentially identical facts, BGO Music, Inc., v. Pee Bee Investments, Inc., 785 F.2d 304 (4th Cir.1986), aff’g No. 83-1166, slip op. (S.D.W.Va. Feb. 1, 1985), the rules of our court discourage us from treating that decision as authority. See Sixth Circuit Rule 24(b).
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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".
STATE STREET BANK AND TRUST COMPANY et al., Executors, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
No. 6056.
United States Court of Appeals First Circuit.
Heard Jan. 2, 1963.
Decided Jan. 22, 1963.
Frederic G. Corneel, Boston, Mass., with whom John N. Worcester, Alfred Thomas, Philip H. Suter and Sullivan & Worcester, Boston, Mass., were on brief, for appellants.
Carolyn R. Just, Atty., Dept. of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen,, Lee A. Jackson and Loring W. Post, Attys., Dept. of Justice, and W. Arthur Garrity, Jr., U. S. Atty., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
In this suit for refund of estate taxes the sole question is whether a power in the trustees of a testamentary trust to distribute principal to the testator’s widow as they “in their uncontrolled discretion may deem necessary or advisable for her comfortable support and maintenance and for any other reasonable requirement” made the value of the charitable remainder unascertainable for lack of a definite standard, and henee non-deductible. I.R.C. § 2055 (1954); Newton Trust Co. v. Commissioner, 1 Cir., 1947, 160 F.2d 175. The facts were stipulated. The district court found for the government, on the ground that “requirement” meant “demand” in the sense of request, and the executors appealed.
In this much mooted area two Supreme Court cases illustrate what is inside the pale and what is beyond. In Ithaca Trust Co. v. United States, 1929, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647, invasion of principal was authorized to pay the widow what “may be necessary to suitably maintain her in as much comfort as she now enjoys.” The court held this to be at once a definite and an ascertainable standard. On the other hand, in Merchants National Bank v. Commissioner, 1943, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35, the court reached the opposite conclusion where the power permitted invasion for the widow’s “comfort, support, maintenance, and/or happiness,” pointing out the impossibility of defining what may be required for a woman’s “happiness,” and hence of ascertaining what would be the ultimate charitable gift. The government contends that the phrase “any other reasonable requirement” is also undefinable.
Although the executors have argued a number of other matters, in the last analysis their position comes down to asserting that the sole power of invasion is “to permit [the widow] to continue her accustomed standard of living.” They are driven to this because they can suggest nothing else that would be measurable. Indeed, they cite no case that has accepted any other standard, regardless of how the will was drawn. Passing the fact that as a matter of mere semantics the executors are suggesting four words when the will uses ten, we think their interpretation unduly restrictive. While in domestic relations cases, as the executors point out, “support and maintenance” is sometimes narrowly construed, see, e. g., Wilson v. Wilson, 1952, 329 Mass. 208, 107 N.E.2d 195, it is clear that a will that permits invasion to furnish “comfortable support and maintenance” of itself provides for the continuance of the widow's present standard of living. Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 1929, 36 F.2d 710; Berry v. Kuhl, 7 Cir., 1849, 174 F.2d 565; Holden v. Strong, 1889, 116 N.Y. 471, 22 N.E. 960; cf. Blodget v. Delaney, 1 Cir., 1953, 201 F.2d 589 (“comfort and welfare”). Hence the executors are saying the will contains a clause of six words, expressed cumulatively and not alternatively, that means absolutely nothing.
We realize that wills may be redundant. But there is also a principle that additional words presumably import additional meaning. There comes a time when this principle must be recognized. Even if, as executors very persuasively argue, “reasonable requirement” means a “need” (rather than a “request”) and “comfortable support and maintenance,” also, means “needs,” we do not believe it follows that in combination there is no greater meaning. As has been pointed out, a gift of “support and maintenance,” or an equivalent phrase, of itself is a gift to the widow of support in the manner to which she has been accustomed. It would seem fair to assume that the addition of “any other reasonable [need]” authorized the trustees to provide something more; to wit, a higher — and hence immeasurable — standard. Cf. Third National Bank and Trust Co. v. United States, 1 Cir., 1956, 228 F.2d 772; Newton Trust Co. v. Commissioner, 1 Cir., 1947, 160 F.2d 175 (“use and benefit”); DeCastro’s Estate v. Commissioner, 2 Cir., 1949, 155 F.2d 254, cert. den. 329 U.S. 727, 67 S.Ct. 82, 91 L.Ed. 630 (“amply provide for her needs”).
The problem here raised had long been conspicuous when this will was drawn. The area is a sensitive one. In a sense in every instance where invasion of principal is authorized, but the value of the remainder is claimed as a deduction, the testator has been attempting to eat his cake and have it, too. Yet it was clear that this testator could have provided for his widow’s “comfortable support and maintenance,” or, indeed, in terms for her “accustomed standard of living,” and escaped this difficulty. Where he chose to say something more, with complete absence of specificity, we believe the risk of uncertainty should be his and not the government’s.
Judgment will be entered affirming the judgment of the District Court.
. See, also, Henslee v. Union Planters National Bank, 1949, 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259 (“pleasure, comfort and welfare”). But cf. United States v. Powell, infra, n. 3.
. The executors properly concede that it is not enough that the income, coupled with the widow’s independent means, was such that even more liberal expenditures by her than this in all probability would not, in fact, have called for invasion of principal. This is an impermissible argument until it is first established that the will set a definite standard. Henslee v. Union Planters National Bank, supra, n. 1; see Blodget v. Delaney, 1 Cir., 1953, 201 F.2d 589. The case of Commissioner of Internal Revenue v. Robertson’s Estate, 4 Cir., 1944, 141 F.2d 855 must be taken to be overruled by Hens-lee.
. Judge Magruder’s early pronouncement, see Gammons v. Hassett, 1 Cir., 1941, 121 F.2d 229, 235, cert. den. 314 U.S. 673, 62 S.Ct. 136, 86 L.Ed. 539, that the Ithaca Trust decision went to the very verge of the law has never been contradicted, unless, conceivably, in United States v. Powell, 10 Cir., 1962, 307 F.2d 821. In that case the will permitted invasion for the widow’s “maintenance, welfare, comfort or happiness.” In finding a standard the court distinguished Merchants National Bank v. Commissioner, supra, on the ground that the will there said that “happiness” was to be “liberally” construed, whereas the instant will required the trustees to determine that invasion was “justified.” However, it is not clear what standard the court felt was established, unless the standard of living to which the widow was already accustomed. In passing, with all deference, we have serious reservations about the court’s interpretation of “happiness.” In addition to denying it any meaning over other words already in the will, the only case cited with what wo would think comparable language was Blunt v. Kelly, 3 Cir., 1942, 131 F.2d 632 (“support, care or benefit”) apparently without recognizing the question there was entirely different. Cf. Newton Trust Co. v. Commissioner, infra.
. It is true that in this last case the will further provided that “no one shall have the right to call into question the propriety of the amount so applied for my wife.” So, in the case at bar, the will provided that the trustees’ discretion was to be “uncontrolled.” These provisions mean the same thing, Dumaine v. Dumaine, 1938, 301 Mass. 214, 16 N.E.2d 625, 118 A.L.R. 834, and, of course, do not mean literally what they say. Ibid.
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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
MORALES v. NEW YORK
No. 86.
Argued November 20, 1969
Decided December 8, 1969
Richard T. Farrell argued the cause and filed a brief for petitioner.
Burton B. Roberts argued the cause for respondent. With him on the brief was Daniel J. Sullivan.
Per Curiam.
On October 4, 1964, a murder by stabbing took place in an elevator of an apartment building where petitioner Morales’ mother lived and where Morales frequently visited. On October 13, his mother informed Morales by telephone that the police wished to talk with him; petitioner said that he would come that evening to his mother’s place of business. This he did. He was apprehended by police officers and taken to the police station, arriving at 8:30 p. m. Within 15 minutes he had confessed to the crime and by 9:05 p. m. he had written and signed a statement. In response to subsequent questioning by police officers, Morales later repeated the substance of this confession. At the trial, the court held a separate hearing on the voluntariness of the confessions, found them voluntary, and admitted them over Morales’ objection. Morales was convicted, the jury apparently rejecting his alibi defense that he was with his mother at the time of the murder. The Appellate Division of the New York Supreme Court affirmed without opinion. People v. Morales, 27 App. Div. 2d 904, 280 N. Y. S. 2d 520 (1967). In the New York Court of Appeals, Morales for the first time raised a Fourth Amendment issue, claiming that there was no probable cause for his detention at the time of his confessions and that the confessions, even if voluntary, were inadmissible fruits of the illegal detention. The State asserted that the issue had not been decided below and that there had hence been no opportunity to make a record of the relevant facts; moreover, the State claimed that Morales had voluntarily surrendered himself for questioning and that in any event the voluntary confessions were the result of an independent choice by Morales such that the legality of the detention was irrelevant to the admissibility of the confessions.
The Court of Appeals affirmed, accepting without discussion the trial court’s finding as to the voluntariness of Morales’ confessions. People v. Morales, 22 N. Y. 2d 55, 238 N. E. 2d 307 (1968). The court dealt with and rejected the Fourth Amendment claim not on the ground that there was probable cause to arrest but rather on the ground that the police conduct involved was reasonable under the circumstances of the case. Although Morales was not free to leave at the time he was apprehended and would have been restrained had he attempted to flee, the Court of Appeals stated that his detention was not a formal arrest under New York law and that had he refused to answer questions in the police station (where he was entitled to have a lawyer if he desired one) he would have been free to leave. The Court of Appeals held that the State had authority under the Fourth Amendment to conduct brief custodial interrogation of “those persons reasonably suspected of possessing knowledge of the crime under investigation in circumstances involving crimes presenting, a high degree of public concern affecting the public safety.” 22 N. Y. 2d, at 65, 238 N. E. 2d, at 314. We granted certiorari, 394 U. S. 972 (1969).
After considering the full record, we do not disturb the determination of the trial court, affirmed by the New York appellate courts, that Morales’ confessions were voluntarily given. The trial occurred prior to Miranda v. Arizona, 384 U. S. 436 (1966), and the totality of the circumstances surrounding the confessions shows that the confessions were voluntary, not coerced.
We should not, however, decide on the record before us whether Morales’ conviction should otherwise be affirmed. The ruling below, that the State may detain for custodial questioning on less than probable cause for a traditional arrest, is manifestly important, goes beyond our subsequent decisions in Terry v. Ohio, 392 U. S. 1 (1968), and Sibron v. New York, 392 U. S. 40 (1968), and is claimed by petitioner to be at odds with Davis v. Mississippi, 394 U. S. 721 (1969). But we have concluded after considering the parties’ briefs and hearing oral argument that there is merit in the State’s position that the record does not permit a satisfactory evaluation of the facts surrounding the apprehension and detention of Morales. A lengthy hearing was held on the question of the voluntariness of the confessions, but the basis for the apprehension of Morales does not appear to have been fully explored since no challenge to the lawfulness of the apprehension was raised until the case came to the Court of Appeals. Although that court stated that “[i]t may be conceded that the apprehending detectives did not have probable cause to justify an arrest of defendant at the time they took him into custody,” 22 N. Y. 2d, at 58, 238 N. E. 2d, at 310, the court later said that “[t]he checkerboard square of the police investigation, although resting upon circumstantial evidence, pointed only to defendant. ... In fact, defendant was the only person the police could have reasonably detained for questioning based upon the instant record.” 22 N. Y. 2d, at 64, 238 N. E. 2d, at 313.
Given an opportunity to develop in an evidentiary hearing the circumstances leading to the detention of Morales and his confessions, the State may be able to show that there was probable cause for an arrest or that Morales’ confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention. In any event, in the absence of a record that squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises, we choose not to grapple with the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest.
We accordingly vacate the judgment below and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Black dissents and would affirm.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_casetyp1_7-3-3
|
J
|
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".
KELEHER v. KELEHER (three cases).
Nos. 10647-10649.
United States Court of Appeals, District of Columbia Circuit.
Argued May 23, 1951.
Decided July 5, 1951.
James J. Laughlin, Washington, D. C., for Anna T. Keleher. Albert J. Ahern, Washington, D. C., also entered an appearance on behalf of Anna T. Keleher.
Alvin L. Newmyer, Washington, D. C., with whom Mr. Alvin L. Newmyer, Jr., Washington, D. C., was on the brief, for John B. Keleher.
Before PRETTYMAN and WASHINGTON, Circuit Judges, and LEDERLE, District Judge (sitting by designation).
PER CURIAM.
Mrs. Keleher appeals from the decree of divorce granted her husband by reason of her desertion, and from the denial of her petition for a limited divorce based on his cruelty. In this aspect of the litigation we find no error, and the action of the District Court will to that extent be affirmed. We likewise affirm the action of the District Court in awarding counsel fees to Mrs. Keleher.
Mr. Keleher appeals from an award of alimony and property to his wife, as reflected in the following conclusion of law reached by the trial court:
“2. The plaintiff, as husband of the defendant, should be required to pay her the lump sum of $60,000.00 as final permanent alimony in lieu of and in release of all her claims and rights against plaintiff and his estate. This lump sum of $60,000.00 to be paid as final permanent alimony shall be additional to and beyond the $60,000.00 taken from the joint safe deposit boxes by defendant and retained as above mentioned, and the said $60,000.00 so taken from said safe deposit boxes and retained by defendant shall, by virtue of the judgment of the Court in this action, become and continue to be the property of the defendant solely.”
With regard to the second item mentioned, it appears that while her husband was absent from the city, just prior to their final separation, Mrs. Keleher opened two safe deposit boxes held in their joint names and removed therefrom funds belonging to her husband in the amount of $60,000.00. There was no claim by Mrs. Keleher that she owned these funds. The action of the trial court with respect to these abstracted funds, when coupled with the award of $60,000.00 in lump sum alimony, amounted to a grant to the wife of a total of $120,000.00: “a sum,” to quote the court, “which is in excess of 35% of the total value of * * * [the husband’s] property, as established by the record in this cause of action.” (Finding of Fact No. 6)
Subsequent ho this action by the District Court, we rendered our decision in Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 188 F.2d 31, 33, where we said that “absent some right or element of ownership, legal or equitable, on the part of the wife, in property of the husband, it is error for the court to order the transfer of that property to her.” While the question then before us related to real property, we think that the same underlying reasoning precludes the sort of division of the husband’s funds and other property which was ordered in this case. We recognize the power of the trial court, in the exercise of discretion, to make awards of a character reasonably to be included in the concept of support and maintenance. Quarles v. Quarles, 86 U.S.App.D.C. 41, 179 F.2d 57. But the right to support is not the right to endowment, and the present award falls clearly in the latter category. Alimony is intended as a means of carrying out the husband’s obligation to provide support; its amount must be measured by tests bearing a sound relationship to that objective; and .it cannot be used as a device ‘for dividing up the husband’s property.
We will accordingly remand this aspect, of the case to the District Court for reconsideration of its action, and for entry of an order consistent with this opinion.
No. 10647 and No. 10649 are affirmed; No. 10648 is affirmed in part, reversed in. part and remanded.
. No. 10649.
. No. 10647.
. No. 10648, in which Mr. Keleher is the appellant.
. No. 10648, supra, note 3.
. We added in the same ease that “the court may adjudicate the property rights of the spouses, and award the wife property which belongs to her”: citing Reilly v. Reilly, 86 U.S.App.D.C. 345, 182 F.2d 108.
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:
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sc_lcdispositiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
TUGGLE v. NETHERLAND, WARDEN
No. 95-6016.
Decided October 30, 1995
Per Curiam.
In Zant v. Stephens, 462 U. S. 862 (1983), we held that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid. Id., at 886-888. We noted that our holding did not apply in States in which the jury is instructed to weigh aggravating circumstances against mitigating circumstances in determining whether to impose the death penalty. Id., at 874, n. 12, 890. In this case, the Virginia Supreme Court and the Court of Appeals for the Fourth Circuit construed Zant as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for which another aggravating factor may have been found to be invalid. Because this interpretation of our holding in Zant is incorrect, we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and vacate the judgment of the Court of Appeals.
I
Petitioner Tuggle was convicted of murder in Virginia state court. At his sentencing hearing, the Commonwealth presented unrebutted psychiatric testimony that petitioner demonstrated “ ‘a high probability of future dangerousness.’ ” Tuggle v. Commonwealth, 230 Va. 99, 107, 334 S. E. 2d 838, 844 (1985), cert. denied, Tuggle v. Virginia, 478 U. S. 1010 (1986). After deliberations, the jury found that the Commonwealth had established Virginia’s two statutory aggravating circumstances, “future dangerousness” and “vileness”; it exercised its discretion to sentence petitioner to death. 230 Va., at 108-109, 334 S. E. 2d, at 844-845.
Shortly after the Virginia Supreme Court affirmed petitioner’s conviction and sentence, Tuggle v. Commonwealth, 228 Va. 493, 323 S. E. 2d 539 (1984), we held in Ake v. Oklahoma, 470 U. S. 68 (1985), that when the prosecutor presents psychiatric evidence of an indigent defendant’s future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. Id., at 83-84. Because petitioner had been denied such assistance, we vacated the State Supreme Court’s judgment and remanded for further consideration in light of Ake. Tuggle v. Virginia, 471 U. S. 1096 (1985).
On remand, the Virginia Supreme Court invalidated the future dangerousness aggravating circumstance because of the Ake error. See Tuggle v. Commonwealth, 230 Va., at 108-111, 334 S. E. 2d, at 844-846. The court nevertheless reaffirmed petitioner’s death sentence, reasoning that Zant permitted the sentence to survive on the basis of the vileness aggravator. 230 Va., at 110-111, 334 S. E. 2d, at 845-846. The Court of Appeals agreed with this analysis on federal habeas review, Tuggle v. Thompson, 57 F. 3d 1356, 1362-1363 (CA4 1995), as it had in the past. Quoting the Virginia Supreme Court, the Court of Appeals stated:
“ ‘When a jury makes separate findings of specific statutory aggravating circumstances, any of which could support a sentence of death, and one of the circumstances subsequently is invalidated, the remaining valid circumstance, or circumstances, will support the sentence.’” Id., at 1363 (quoting 230 Va., at 110, 334 S. E. 2d, at 845, and citing Zant, supra).
II
Our opinion in Zant stressed that the evidence offered to prove the invalid aggravator was “properly adduced at the sentencing hearing and was fully subject to explanation by the defendant.” 462 U. S., at 887. As we explained:
“[I]t is essential to keep in mind the sense in which [the stricken] aggravating circumstance is ‘invalid.’ . . . [T]he invalid aggravating circumstance found by the jury in this case was struck down ... because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. The underlying evidence is nevertheless fully admissible at the sentencing phase.” Id., at 885-886 (internal citations omitted).
Zant was thus predicated on the fact that even after elimination of the invalid aggravator, the death sentence rested on firm ground. Two unimpeachable aggravating factors remained and there was no claim that inadmissible evidence was before the jury during its sentencing deliberations or that the defendant had been precluded from adducing relevant mitigating evidence.
In this case, the record does not provide comparable support for petitioner’s death sentence. The Ake error prevented petitioner from developing his own psychiatric evidence to rebut the Commonwealth’s evidence and to enhance his defense in mitigation. As a result, the Commonwealth’s psychiatric evidence went unchallenged, which may have unfairly increased its persuasiveness in the eyes of the jury. We may assume, as the Virginia Supreme Court and Court of Appeals found, that petitioner’s psychiatric evidence would not have influenced the jury’s determination concerning vileness. Nevertheless, the absence of such evidence may well have affected the jury’s ultimate decision, based on all of the evidence before it, to sentence petitioner to death rather than life imprisonment.
Although our holding in Zant supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence. The latter circumstance is more akin to the situation in Johnson v. Mississippi, 486 U. S. 578 (1988), in which we held that Zant does not apply to support a death sentence imposed by a jury that was allowed to consider materially inaccurate evidence, 486 U. S., at 590, than to Zant itself. Because the Court of Appeals misapplied Zant in this case, its judgment must be vacated.
Ill
Having found no need to remedy the Ake error in petitioner’s sentencing, the Virginia Supreme Court did not consider whether, or by what procedures, the sentence might be sustained or reimposed; and neither the state court nor the Court of Appeals addressed whether harmless-error analysis is applicable to this case. Because this Court customarily does not address such an issue in the first instance, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
So ordered.
Virginia’s capital punishment statute involves a two-stage determination. The jury first decides whether the prosecutor has established one or both of the statutory aggravating factors. Va. Code Ann. §§19.2-264.4(C)-(D) (1995). If the jury finds neither aggravator satisfied, it must impose a sentence of life imprisonment. Ibid. If the jury finds one or both of the aggravators established, however, it has full discretion to impose either a death sentence or a sentence of life imprisonment. Ibid.
See Smith v. Procunier, 769 F. 2d 170, 173 (CA4 1985).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_appel1_7_5
|
D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Werner ABEGG, Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Appellant. CRESTA CORPORATION, S.A., Transferee, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
Nos. 622, 623, Dockets 34136, 34146.
United States Court of Appeals, Second Circuit.
Argued May 28, 1970.
Decided July 14, 1970.
Emilio A. Dominianni, New York City (John E. McDermott, Jr., Michael Keating and Coudert Brothers, New York City, of counsel), for Werner Abegg and Cresta Corporation.
Paul M. Ginsburg, Atty., Department of Justice, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson and Thomas L. Stapleton, Attys.,, Dept, of Justice, Washington, D. C., of counsel), for Commissioner of Internal Revenue.
Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.
FRIENDLY, Circuit Judge:
These two appeals from a decision of the Tax Court, 50 T.C. 145, one by the taxpayer and the other by the Commissioner, concern a series of transactions in which Werner Abegg, a Swiss citizen, liquidated one wholly-owned personal holding company and transferred all its assets, plus other securities in substantial amount, to another personal holding company. Although the appeals relate to different tax years and present independent legal issues, there is a sufficient identity in the dramatis personae to make it convenient to state all the facts at the outset.
I. The Facts
Hevaloid Corporation was organized under the laws of Delaware in 1938. All its issued stock, 250 shares, was held by Abegg. It owned industrial patents and machinery which it leased to various American corporations. In 1955 the patents expired and it sold the machinery. In 1956 and 1957 it was a personal holding company; its assets consisted exclusively of cash, securities, receivables, and rights in a motion picture “Guest in the House.” In 1957, Robert A. Cavin, a close associate and business adviser of Abegg for many years, was its president.
On March 28, 1957, Hevaloid adopted a plan of complete liquidation and dissolution. A certificate of dissolution was filed on April 18. During April and May it sold stock in four publicly owned corporations for $1,671,341, which it deposited in the New York Trust Company. These sales represented a gain of $932,701. Hevaloid reported them in its 1957 income tax return but claimed that the gain was not to be recognized under I.R.C. § 337. On May 1 and 2 it drew checks to Abegg on its account at New York Trust Company aggregating $1,-660,936. On May 7 it delivered to Laird & Co., a New York brokerage firm, for Abegg’s account, certificates and stock powers for 7,470 shares of Brazos River Gas Company, 2,720 shares of Medallion Petroleum Limited, and 13,692 shares of Producing Properties, Inc. On May 23 it directed Laird & Co. to transfer from the account of Hevaloid to the account of Abegg 1,945 shares of Magma Copper Company and 2,600 shares of Signal Oil and Gas Company; on the same day it also transferred to Abegg its interest in a loan receivable from Perosa Corporation and in the motion picture. The final step in its liquidation was taken in December 1957 by drawing to Abegg a $32,156 check on another bank. Abegg deposited all these checks in his account at Bankers Trust Company.
Cresta Corporation, S.A., originally known as Suvretta Corporation, S.A., was incorporated in Panama in 1941 but remained inactive. On May 7, 1957, it issued 1,000 shares of stock to Abegg in return for cash and other assets, as follows: On May.7, 1957, Abegg issued to it a $1,500,000 check on his account at Bankers Trust Company, $250,000 of which was considered a demand loan and $1,250,000 as part payment for stock. On May 24, Laird & Co., on Abegg’s instruction, transferred to Cresta in further payment the five securities that Hevaloid had ordered it to transfer to him earlier that month. The fair market value of each security exceeded its adjusted basis; the aggregate excess was $262,520. The same day Abegg transferred stock of 'Illinois Central R. R., Olin Mathiesen Chemical Corporation, additional common shares and a note of Brazos River Gas Company, preferred stock and bonds of Producing Properties, Inc., 1,000 shares of Perosa Corporation, which were regarded as valueless, and 3,000 shares of Meridan Corporation, a Rhode Island corporation in which he owned 50% of the stock and Cavin 10%. Meridan had a net worth of $2,510,673 as of December 31, 1957. Nearly sixty per cent of this represented a piano business in Michigan; it also had an interest in an operating company in Chicago and later acquired one in a company in Tacoma, Washington. On June 8 Abegg transferred to Cresta the interest in “Guest in the House”and in the debt from Perosa Corporation which Hevaloid had assigned.
The directors of Cresta, including Abegg and Cavin, met on February 6, 1958, in New York and resolved to qualify to do business in that state, to accept cash and securities from Abegg as contributions to capital, and to borrow an additional $250,000 from him on open account. Abegg drew a check for $400,000 and on February 26, 1958, contributed stock as follows:
(1) a corporation adopts a plan of complete liquidation on or after June 22, 1954, and
(2) within the 12-month period beginning on the date of the adoption of such plan, all of the assets of the corporation are distributed in complete liquidation, less assets retained to meet claims, then no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period.”
Fair Adjusted Market Basis Value
50,680 shares
Brazos River Gas Co. $ 55,850 $101,360 4,250 shares
General American Oil Co. 91,653 110,578 12,650 shares
Magma Copper Co. 1,300,971 449,075
$1,448,474 $661,013
Cavin was Cresta’s sole employee in its fiscal years ending February 28,1958 and 1959 and February 29,1960. He maintained watch over its holdings, especially those in Meridan, and investigated at least a dozen opportunities for investing Cresta’s funds with a view to acquiring the stock or assets of a going business, although no acquisitions were made. In these years Cresta paid salaries to Cavin aggregating $46,750, and also some $50,000 in legal, accounting, travel and other business expenses. Cresta filed income tax returns as a personal holding company.
Only a few further facts need be stated : Abegg was not engaged in trade or business within the United States. In 1957 he was in the country only from January 1 to March 27. He was here more than 90 days in 1958. At the time when the Commissioner sent a notice of deficiency to Cresta as Hevaloid’s transferee, Abegg had net assets in the United States more than sufficient to pay the tax allegedly owing from Hevaloid.
II. Cresta’s Appeal
Viewed alone the liquidation of Hevaloid meets the requirements of I.R.C. § 337(a). The Commissioner does not dispute this, nor its corollary that if § 337 is applied, the $932,701 gain realized by Hevaloid on the sale of securities and Abegg’s gain on the liquidation would escape United States taxation altogether. Hevaloid would not be taxable because of § 337(a). Abegg would not be taxable on the gain from the liquidation of Hevaloid because as a nonresident alien, not engaged in trade or business within the United States, who was present in the United States for fewer than 90 days in 1957, he was subject to United States taxation only on capital gains from sales or exchanges of personal property in the United States while he was present here, and Hevaloid’s liquidating distributions were carried out during his absence.
On February 19, 1962, the Commissioner mailed to Cresta as transferee a notice of deficiency reading as follows:
The reported liquidation of Hevaloid Corporation, the transfer of assets to W. Abegg and the retransfer of such assets by him to Cresta Corporation, S.A. were in substance, component steps in a reorganization within the meaning of section 368(a) of the Internal Revenue Code of 1954. Accordingly, the benefits of section 337 of the Internal Revenue Code of 1954 are not applicable and the capital gains realized on the sale of assets as shown in the 1957 return of Hevaloid Corporation, are includible in gross income.
Since, in substance, Hevaloid Corporation in the course of reorganization transferred assets to Cresta Corporation, S.A., a foreign corporation and did not secure clearance under section 367 of the Internal Revenue Code of 1954 prior to the transfer, Hevaloid Corporation is denied the benefits of section 361(a) of the Internal Revenue Code of 1954. The gains realized on the transfer as computed in Exhibit A are recognized.
The gains from Hevaloid’s sales of securities amounted, as previously indicated, to $932,701; the gains from the transfers to Cresta of property which Abegg had received from Hevaloid were $262,519 with respect to securities stated above, plus $4,725 with respect to “Guest in the House.’’ The Tax Court sustained the Commissioner.
Cresta does not dispute that if the result of the 1957 transactions had been achieved by a straightforward reorganization under § 368(a) (1) (D), the gains realized by Hevaloid on sales of securities would not come under the nonrecognition shelter of § 337 and the gains realized on transfers of appreciated securities would likewise be taxable since they would qualify for non-recognition only by virtue of §§ 351 and 354(a) (1), and that protection was lost by failure to obtain a ruling under § 367. It nevertheless contested the determination of deficiency on three grounds. It claimed that the reorganization provisions are not applicable to corporations that are mere personal holding companies; that if that position were rejected, the judicially created “liquidation-reincorporation” doctrine on which the Commissioner relied should not be applied when what has come to be a personal holding company as a result of the cessation of an active business distributes liquid assets to its sole stockholder; and, in any event, that, since the transfer from Hevaloid to Cresta was routed through Abegg and he was financially able to pay any tax owed by Hevaloid, Cresta was not liable as a transferee. The Tax Court rejected all three contentions. Although Cresta’s arguments are not without force, we agree with the Tax Court.
Cresta concedes, as it must, that no case directly holds the reorganization provisions inapplicable to personal holding companies, and, indeed, the one case cited that considered the question is to the contrary. Estate of Elise W. Hill, 10 T.C. 1090 (1948). Cresta nevertheless points to language in the Regulations and in judicial decisions referring to the need for a “business purpose” for the reorganization or for a “continuation of the business enterprise.” Relying in part on the Tax Court’s ruling that it was not engaged in a trade or business for purposes of I.R.C. § 882, see fn. 1, Cresta contends that the activities of a mere holding company are not enough of a “business” to satisfy these requirements. However, the language Cresta cites was not remotely addressed to the issue here under consideration, and we see no warrant for ruling that a personal holding company may not take advantage of the reorganization provisions if their requirements are otherwise met. Certainly it would be hard to require a personal holding company or its shareholders to recognize gain when the company undergoes “a statutory merger or consolidation,” “a recapitalization,” or “a mere change in identity, form or place of organization” within I. R.C. § 368(a) (1) (A), (E), and (F), and there would be little virtue in permitting them to take a loss at will by such a transaction. Thus we think it plain that reorganizations of personal holding companies fall within “the plain intent of the statute,” Gregory v. Helvering, supra, 293 U.S. at 470, 55 S.Ct. at 268, and should be treated accordingly. Indeed, the examples in § 1.381(c) (14)-l(c) of the Regulations explicitly assume that a personal holding company may result from a reorganization.
Cresta’s second argument, relating to the judge-made “liquidation-reincorporation” doctrine, is more appealing, but not appealing enough. The doctrine indeed has its elements of curiosity. Building on statutory provisions intended for the benefit of taxpayers, over which the Treasury has vigilantly stood guard, it forces their consequences on taxpayers who want nothing of them. See Hewitt and Cuddihy, The Liquidation Reincorporation Problem, a Running Tax Battle, 12-13 (1969). However, the tax avoidance purposes that can be served by “the liquidation of a corporation followed by a transfer of part or all of the assets to a newly-organized corporation owned by the same shareholders” are so numerous and serious, see Bittker & Eustice, Federal Income Taxation of Corporations and Shareholders, 569-570 (2d ed. 1966), that the doctrine had to be created. In any event it is too late to question its vitality and Cresta does not do so.
It is true enough that the vice of liquidation-reincorporation appears most clearly when a company engaged in active business purports to liquidate but the shareholders then put the operating assets back into a new corporation. Although as a practical matter incorporation is a necessity for the business, the shareholders by a mere sleight of hand would have withdrawn earnings and profits on payment only of a capital gains tax and would have achieved a stepped-up basis for appreciated assets if the liquidation-reincorporation doctrine did not prevent. There seems to be no similar necessity for stockholders who have received only liquid assets on liquidation to transfer them to a new corporation. However, Abegg evidently decided it was to his advantage that the management of certain of his liquid assets in the United States which the Delaware corporation had come to own as a result of cessation of its active business, as well as other assets transferred by him, should not be conducted by him, but rather by a Panamanian corporation qualified in New Yprk, which should seek out opportunities for acquiring active businesses. As has been said, “The ‘reincorporation’ problem arises when taxpayers seek to combine the benefits of a complete liquidation (i. e., capital gain or loss on the distribution, a new basis for the assets, and elimination of corporate earnings and profits), with the ‘reorganization’ advantages of continued operation of the business in corporate form.” Bittker & Eustice, supra, at 572. That is precisely what happened here, see Hewitt and Cuddihy, supra, at 95-103; it was Abegg’s decision to put the cash and securities derived from the liquidation of Hevaloid back into Cresta, rather than retain them in his own accounts with attendant freedom from United States, taxes.
Cresta’s argument that Hevaloid had already liquidated when it ceased its active business and thus could not liquidate again is mostly a play upon words. Like many other terms, liquidation does not mean in tax language what it may in ordinary speech. The Regulations, § 1.332-2(c), instruct that “A status of liquidation exists when the corporation ceases to be a going concern and its activities are merely for the purpose of winding up its affairs, paying its debts, and distributing any remaining balance to its stockholders.” Hevaloid did not attain that status until the spring of 1957. We do not regard Pridemark, Inc. v. C.I.R., 345 F.2d 35 (4 Cir. 1965), relied on by Cresta, as conflicting in any way with the result reached here. The Commissioner in that case apparently did not argue that a “D” reorganization had occurred, but only that no “complete” liquidation had occurred within the meaning of § 337, or alternatively that the liquidation and subsequent incorporation there consituted an “F” reorganization. See 345 F.2d at 41. The court rejected the first contention on the ground that the liquidation of the old company was intended to be complete and final, and the starting up of the new company was a later idea, hit upon only after the owners had been unsuccessful in other lines of business. The second contention was rejected on the ground that the shifts in officers and shareholder interests, along with the operating scale of the new company, were simply too much to be called a “mere change in identity, form, or place of organization.” It is apparent that neither basis of the decision is applicable here.
Cresta’s final point goes to the question of transferee liability. The Supreme Court held in Commissioner v. Stern, 357 U.S. 39, 42, 45, 78 S.Ct. 1047, 1049, 1051, 2 L.Ed.2d 1126 (1958), that the predecessor of § 6901(a) of the present code “neither creates nor defines a substantive liability but provides merely a new procedure by which the Government may collect taxes,” and that “the existence and extent of liability should be determined by state law,” here presumably the law of New York. Cresta contends that Hevaloid’s transferee was Abegg, who could have been assessed until March 15, 1962, and that it cannot be held as transferee of Abegg because at the time of that transfer Abegg had assets in the United States sufficient to pay the tax. For the latter branch of its argument it relies on § 273 of New York’s Debtor and Creditor Law, McKinney’s Consol. Laws, c. 12, making insolvency of the debtor an essential element of a fraudulent conveyance in the absence of actual fraud, which is not asserted by the Commissioner here.
However, although we have found no New York case directly in point, opinions such as those in Salner Realty Corp. v. Nancy Lee Millinery, Inc., 262 App.Div. 491, 30 N.Y.S.2d 596 (1st Dept.1941), and Beol, Inc. v. Dorf, 22 Misc.2d 798, 193 N.Y.S,2d 394 (Sup. Ct.1959), aff’d mem., 12 A.D.2d 459, 209 N.Y.S.2d 267 (1st Dept.1960), appeal dismissed, 9 N.Y.2d 963, 218 N.Y. S.2d 43, 176 N.E.2d 499 (1961), illustrate the concern New York shows for creditors of one corporation who suddenly find that its assets have been shuttled, mediately or immediately, to another controlled by the same interests. We therefore do not believe that the New York courts would regard Abegg’s momentary ownership of Hevaloid’s assets as sufficiently significant to free Cresta from the transferee liability to which it would otherwise have been subject.
III. The Commissioner’s Appeal
The Commissioner also determined a deficiency with respect to Abegg’s contributions to Cresta of 50,-680 appreciated shares of Brazos River Gas Co. and of 4,250 appreciated shares of General American Oil Co. on February 26, 1958. He started from the fact that Abegg was present in the United States for more than 90 days in 1958, and from I.R.C. § 871(a) (2) (B) and (b) which subject a nonresident alien so present to tax on “sales and exchanges of capital assets effected at any time during such year” in excess of losses from such sales and exchanges. He acknowledged that if Cresta had been a United States corporation, the contribution on his view would be protected by § 351, which provides for non-recognition of gain or loss “if property is transferred to a corporation by one or more persons solely in exchange for stock in such corporation and immediately after the exchange such person or persons are in control (as defined in section 368(c)) of the corporation.” But here again, the Commissioner contended, § 367, reared its ugly head in Abegg’s path. For, as stated in fn. 4, § 367 mandates that “in determining the extent to which gain shall be recognized in the case of any of the exchanges described” in various sections including § 351, “a foreign corporation shall not be considered a corporation” unless before such exchange a ruling has been obtained that the exchange is not in pursuance of a plan having federal income tax avoidance as a principal purpose, and it is stipulated that this was not done here.
In answer to the argument that since Abegg received nothing in exchange and thus realized no gain within the meaning of § 1001(b), the Commissioner contended that issuance of stock by a corporation to a 100% shareholder is a meaningless ritual. He cited cases, notably C.I.R. v. Morgan, 288 F.2d 676 (3 Cir.), cert. denied, 368 U.S. 836, 82 S.Ct. 32, 7 L.Ed.2d 37 (1961), and Davant v. C.I.R., 366 F.2d 874, 884-887 (5 Cir. 1966), cert. denied, 386 U.S. 1022, 87 S.Ct. 1370, 18 L.Ed.2d 460 (1967), which applied the liquidation-reincorporation doctrine to find a “D” reorganization although the transfer was from one owned corporation to another and there was no “distribution” of stock of the latter. He also relied on the holding in King v. United States, 10 F.Supp. 206 (D.Md.), aff’d, 79 F.2d 453 (4 Cir. 1935), that a corporation which received property from its sole shareholder without consideration took the latter’s basis under § 204(a) (8) of the Revenue Act of 1926, relating to property acquired by a corporation “by the issuance of its stock or securities” in a transaction where the seller’s gain or loss was not recognized. In answer to the point that the aggregate effect of the three security transfers on February 26, 1958, was a loss of $787,461, the Commissioner responded, in line with Rev.Rul. 67-192, 1967-2 Cum.Bull. 140, that § 367 cancels only the nonrecognition of gain provided by § 351 but leaves intact that section’s provision for nonrecognition of loss.
Not reaching the last point, the Tax Court found determinative the absence of any stock issuance in exchange. It refused to follow Rev.Rul. 64-155, 1964-1 Cum.Bull. (Part 1) 138, in which the Commissioner took the same position he urges here, and it distinguished King v. United States, supra, 10 F.Supp. 206, and C.I.R. v. Morgan, supra, 288 F.2d 676, on which that ruling had relied. The Commissioner vigorously challenges this holding. He cites the report of the Senate Finance Committee which explained the importance of § 112 (k) of the Revenue Act of 1932, the progenitor of § 367, in preventing tax avoidance by a procedure whereby a taxpayer with large unrealized profits in securities would transfer them to a foreign corporation in exchange for its stock without recognition of gain under the predecessor of § 351, would have the foreign corporation sell the securities in a foreign country imposing no tax on the gain, would cause the foreign corporation to invest the proceeds in the stock of a new American subsidiary, and would then have the foreign corporation distribute the latter’s stock in a tax-free reorganization. S.Rep.No. 665, 72d Cong., 1st Sess., pp. 26-27, 1939-1 Cum. Bull. (Part 2) 496, 515. The Commissioner argues that the tax avoidance potential would be equally great where a sole shareholder contributed appreciated securities to an existing foreign corporation, possibly with only a nominal capitalization.
That is very likely so, but the 1932 Congress took steps to deal expressly with that problem so far as United States citizens were concerned. By § 901 of the Revenue Act of 1932, now carried forward as I.R.C. § 1491, it imposed on “the transfer of stock or securities by a citizen or resident of the United States, or by a domestic corporation or partnership, or by a trust which is not a foreign trust, to a foreign corporation as paid-in surplus or as a contribution to capital, or to a foreign trust, or to a foreign partnership, an excise tax equal to 25 per centum of the excess of (1) the value of the stock or securities so transferred over (2) its adjusted basis in the hands of the transferor * * ; § 902(b) made this tax inapplicable “if prior to the transfer it has been' established to the satisfaction of the Commissioner that such transfer is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes.” See S.Rep. No. 665, 72d Cong., 1st Sess., pp. 55-56, 1939-1 Cum.Bull. (Part 2) 496, 536. If the combination of § 112 (k) and 112(b) (5), the predecessor of I.R.C. § 351, reached a contribution to the capital or paid-in surplus of a foreign corporation, § 901 was unnecessary, since Congress obviously did not mean that in the absence of an advance ruling by the Commissioner such a contribution by a United States citizen should be subjected both to income taxation on any excess of value over basis and to excise taxation on the same amount, whereas an exchange in the literal sense should be subjected only to the former. Hence, unless § 901 is to be a dead-letter, § 112 (k) must be read as not reaching a contribution to the capital of a foreign corporation by a United States citizen taxpayer covered by § 901. But it would be anomalous to hold that although the combination of § 112 (k) and § 112(b) (5) of the 1932 Act, now I.R.C. § 351, did not reach the important subject of contributions of appreciated assets to capital or paid-in surplus by a United States citizen to a foreign corporation, which Congress felt obliged to cover separately in § 901, it did reach contributions of such assets as capital or paid-in surplus by nonresident aliens. While the alternative, distinguishing among transfers by nonresident aliens to wholly-owned foreign corporations on the basis of whether they take stock back, is also anomalous, it is less so. Indeed, the real anomaly may be in a nonresident alien’s being caught in the net at all, when he could have avoided the problem altogether by selling the securities abroad and transferring the proceeds. If there are significant avenues of tax avoidance in respect of the contribution by nonresident aliens of appreciated assets to capital or surplus of foreign corporations in the United States, the Commissioner has not brought them to our attention.
To put the matter in another way, since the legislative history shows that § 367 was aimed primarily at tax avoidance by United States taxpayers, nonresident aliens should not be subjected to it in a situation where, as regards United States citizens, Congress thought it necessary to make a special although similar provision. Counsel for a nonresident alien reading § 901 of the 1932 Act or § 1491 of the 1954 Code would be abundantly justified in thinking that Congress meant to require advance approval of contributions to the capital or paid-in surplus of a foreign corporation only when these were made by the persons there described. It may well be, as the Commissioner suggests, that § 901, like the change in § 113(a) (8) of the 1932 Act, see fn. 9, represented an unnecessary overreaction to the decision of the Board of Tax Appeals with respect to contributions to capital or surplus in the Rosenbloom case, and that if Congress had only remained silent, the courts would have handled the problem. But Congress did what it did, and a taxpayer is justified in assuming that it cast its net no further. Agreeing with the Commissioner that the problem is considerably more difficult than the Tax Court thought, we thus believe it reached the right result.
On both appeals the judgment of the Tax Court is affirmed. No costs.
. An issue that was litigated before the Tax Court but is not before us in whether, as Cresta claimed, it was engaged in a trade or business within the United States, so as to be entitled to these deductions under IRC § 882, or, as the Commissioner contended, was not so engaged and was therefore subject to the 30% tax on gross income imposed by IRC § 881(a). The Tax Court decided in favor of the Commissioner. Cresta did not seek review of that decision and relies on it for one of its arguments on the appeal it has taken.
. “If—
. I.R.C. § 871. The section was extensively amended by Pub.L. No. 89-809, Title I, § 103(a) (1), 80 Stat. 1547 (1966), and now taxes nonresident aliens on capital gains not effectively connected with the conduct of a trade or business in this country only if the alien was present in this country for 183 days or more during the taxable year. See S.Rep. No. 1707, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Adm.News, pp. 4446, 4467-4470.
. Section 367, no paradigm of draftsmanship, provides:
Sec. 367. Foreign Corporations.
In determining the extent to which gain shall be recognized in the case of any of the exchanges described in section 332, 351, 354, 355, 356, or 361, a foreign corporation shall not be considered as a corporation unless, before such exchange, it has been established to the satisfaction of the Secretary or his delegate that such exchange is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes. For purposes of this section, any distribution described in section 355 (or so much of section 356 as relates to section 355) shall be treated as an exchange whether or not it is an exchange.
. Helvering v. Gregory, 69 F.2d 809, 811 (2 Cir. 1934), aff’d, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935) : “the underlying presupposition is plain that the readjustment shall be undertaken for reasons germane to the conduct of the venture in hand, not as an ephemeral incident, egregious to its prosecution.” The requirement also appears, less elegantly, in § 1.368-2 (g) of the Regulations.
. Lewis v. C.I.R., 176 F.2d 646 (1 Cir. 1949). See also Regs. § 1.368-1 (b).
. The House draft of the 1954 Code, H.R. 8300, 83d Cong., 2d Sess., § 357 (1954), attempted to deal with the problem in a manner that would not have helped the Commissioner in this ease, since the proposed statute would have applied only when the distributee transferred more than 50% of the assets received on liquidation other than money and stock and securities (except stock or securities of the distributing corporation). This was deleted by the Senate without explanation. The House Managers attributed the deletion to “certain technical problems,” and explained their acquiescence on the grounds “that, at the present time, the possibility of tax avoidance in this area is not sufficiently serious to require a special statutory provision” and that any such possibility “can appropriately be disposed of by judicial decision or by regulation within the framework of the other provisions of the bill.” H.R.Rep. No. 2543, 83d Cong., 2d Sess. 41 (1954), reprinted in 1954 U.S.Code Cong. & Adm. News, pp. 5280, 5301. We do not regard any of thi3 to be significant.
. Sec. 6901. Transferred Assets.
(a) Method of Collection. — The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, paid, and collected in the same manner and subject to the same provisions and limitations as in the case of the taxes with respect to which the liabilities were incurred:
(1) Income, estate, and gift taxes.— (A) Transferees. — The liability, at law or in equity, of a transferee of property—
(i) of a taxpayer in the case of a tax imposed by subtitle A (relating to income taxes),
(ii) of a decedent in the case of a tax imposed by chapter 11 (relating to estate taxes), or
(iii) of a donor in the case of a tax imposed by chapter 12 (relating to gift taxes),
in respect of the tax imposed by subtitle. A. or B.
. Abegg seeks to distinguish King on the basis that the shares in question were contributed within 30 days of the issuance of stock for other shares owned by the organizer and the delay apparently was accidental. Congress solved the problem that gave rise to the King case and also to Rosenbloom Finance Corp., 24 B.T.A. 763 (1931), rev’d 66 F.2d 556 (3 Cir.), cert. denied, 290 U.S. 692, 54 S.Ct. 127, 78 L.Ed. 596 (1933), by enacting § 113 (a) (8) of the Revenue Act of 1932, now I.R.C. § 362, which provided that a corporation takes the transferor’s basis for property acquired “by the issuance of its stock or securities in connection with a transaction described in section 112(b) (5)” or “as paid-in surplus or as a contribution to capital.”
. For another example, wherein the appreciated securities are owned by a United States corporation, see Section 367 and Tax Avoidance: An Analysis of the Section 367 Guidelines, 25 Tax L.Rev. 429, 432 (1970).
. These two sections of the 1932 Act became I.R.C. §§ 1491 and 1492(2) except that the rate was increased to 27%%.
. The Commissioner conceded at argument that if we should sustain his
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_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".
UNITED STATES of America, Plaintiff-Appellee, v. Joel H. DARK, Defendant-Appellant.
No. 78-5237.
United States Court of Appeals, Sixth Circuit.
Argued April 10, 1979.
Decided May 4, 1979.
Walter S. Clark, Phyllis L. Bateman, Nashville, Tenn., for defendant-appellant.
Hal D. Hardin, U. S. Atty., Richard L. Windsor, Asst. U. S. Atty., Nashville, Tenn., for plaintiff-appellee.
Before ENGEL and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.
PER CURIAM.
Appellant Dark was convicted of two counts of willfully failing to file income tax returns, in violation of 26 U.S.C. § 7203 (1976), after a jury trial in the United States District Court for the Middle District of Tennessee. He was sentenced to five months’ imprisonment on count one and to one year’s imprisonment on count two, the latter sentence suspended in favor of three years’ probation.
The government’s evidence was plainly sufficient to support the verdict. During 1973 and 1974, Dark was self-employed as a certified public accountant, he taught elementary accounting at Tennessee State University in Nashville, and he attended law school at night. His total receipts on accounts receivable from his accounting practice amounted to $36,331.10 in 1973 and $40,779.22 in 1974. In 1973 he received a salary of $5,420 from Tennessee State. He failed to file income tax returns for either year, despite the fact that he had been specifically warned by the Internal Revenue Service of his obligation under the law to file timely returns. Dark had failed to file his returns for the years 1967-1971 until March 1973, when he learned that he was under investigation by the IRS. At that time, Dark assured the IRS that he would comply with all filing requirements in the future.
Dark’s defense was that his failure to file had not been “willful.” He testified that his financial books and records were simply “not in shape to file a tax return” on the respective due dates, principally because of the complicated and cumbersome nature of his personal accounting system, and that the pressures of his accounting practice and legal studies had distracted him from properly maintaining his books. The jury deliberated only five minutes before returning its verdict of guilty on both counts.
Dark raises numerous claims of error on appeal, most of which are wholly without merit. He contends that the testimony of certain witnesses subpoenaed by the government should have been excluded at trial because the Assistant United States Attorney had instructed the Marshal not to place the returned subpoenas in the ease file in the district court clerk’s office, thereby preventing defense counsel from looking at the case file to find out who was going to testify for the government. The short answer to this claim is that defense counsel was not entitled to know, in advance of trial, who was going to testify for the government. United States v. Conder, 423 F.2d 904, 910 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970).
Dark contends that the district judge committed reversible error during jury selection by telling the panel, in the course of explaining the presumption of innocence and burden of proof in a criminal case, that “Neither side has the edge.” Read in context, the remark was apparently calculated to impress upon the prospective jurors that both parties in a criminal case come before the court with equal dignity and that neither should be arbitrarily favored out of prejudice for or against the government or defendants as a class. While perhaps better left unsaid, the remark could not have confused the jury, especially in light of the district judge’s more than adequate explanation of the defendant’s presumption of innocence and the government’s heavy burden of proof in his other comments to the panel during jury selection and in his instructions at the close of the trial.
Dark also argues that the trial judge erred in refusing to order the government to turn over to defense counsel, as “statements” under the Jencks Act, the contents of IRS Special Agent Hollingsworth’s case file after Hollingsworth’s testimony at trial, without at least inspecting the file in camera to determine whether it contained any Jencks material. Agent Hollingsworth’s written case reports are not his “statements” under 18 U.S.C. § 3500(e), and the trial court was under no obligation to examine the file in camera, since there was “no basis for belief that a Jencks Act ‘statement’ existed other than those already furnished defense counsel.” United States v. Nickell, 552 F.2d 684, 687-90 (6th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2233, 56 L.Ed.2d 402 (1978).
Dark’s two remaining claims of error are more troublesome. Both involve actions of the trial court, which, Dark argues, unfairly hampered the presentation of his defense.
Dark sought to introduce in evidence some of his personal financial records in an effort to corroborate his claim that his personal record-keeping system was so complicated that it would have been difficult, if not impossible, to prepare accurate tax returns by the dates required by law. The trial judge ruled that the records were irrelevant .and refused to admit them. We think this was error. The records were plainly relevant to Dark’s defense, lame though it might have been.
The other incident occurred during the prosecutor’s cross-examination of Dark. Dark testified, “I do not think I could have done [the 1973 and 1974 tax returns] under the circumstances under which I was laboring. On the due date my books were not in shape to file a tax return.” At that point, the trial judge interrupted to ask the following question: “Well, the reason your books were not in shape is that you elected to spend time making money off somebody else and not keep your own books up, is that not correct?”
This Court has only recently had occasion to observe that “potential prejudice lurks behind every intrusion into a trial made by a presiding judge” and that, when such intrusion occurs, the judge must “sedulously avoid all appearances of advocacy as to those questions which are ultimately to be submitted to the jury.” United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). The question propounded by the trial judge here came dangerously close to violating this principle, for it could have created the impression in the minds of the jurors that the trial judge was unsympathetic to Dark’s defense, a matter which was for the jury, and the jury alone, to evaluate.
In light of the overwhelming evidence of Dark’s guilt, however, we do not believe that either the erroneous exclusion of Dark’s financial records or the trial judge’s isolated intrusion into the cross-examination of Dark affected Dark’s substantial rights. Rule 52, Fed.R.Crim.P.
Accordingly, it is Ordered that the judgment of conviction be, and hereby is, Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_genresp1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Leonardo Q. HERNANDEZ, Petitioner-Appellant, v. Gary RAYL; Attorney General for the State of Kansas, Respondents-Appellees.
No. 90-3378.
United States Court of Appeals, Tenth Circuit.
Sept. 16, 1991.
Leonardo Q. Hernandez, pro se.
JaLynn Copp, Asst. Atty. Gen., Topeka, Kan., for respondents-appellees.
Before SEYMOUR and EBEL, Circuit Judges, and BABCOCK, District Judge.
Honorable Lewis T. Babcock, District Judge, United States District Court for the District of Colorado, sitting by designation.
EBEL, Circuit Judge.
Petitioner, Leonardo Q. Hernandez, 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. Hernandez has also moved to proceed in forma pauperis on appeal and for a certificate of probable cause.
In 1978, Hernandez was convicted of first degree murder and sentenced to life imprisonment. That judgment was affirmed on direct appeal. See State v. Hernandez, 227 Kan. 322, 607 P.2d 452 (1980). Hernandez first raised the issue addressed here in a post-conviction motion for relief. Relief was denied on the grounds of procedural default and on the merits. Because the state court denied Hernandez’s motion on the alternative ground that Hernandez’s failure to raise his post-conviction relief issue on direct appeal could not be excused as an exceptional circumstance thus permitting him to raise the issue for the first time in a post-conviction relief proceeding, the issue of procedural default may be available to respondents as a defense. Respondents did not raise this defense either below or on appeal. “Therefore, we will deem the defense waived and will proceed to consider the petition on the merits.” Bailey v. Cowley, 914 F.2d 1438, 1439 (10th Cir.1990).
In his petition in federal district court, Hernandez alleged that the trial court gave the jury an unconstitutional instruction which shifted the burden of proving the element of intent to the defense. The district court agreed, but found the error harmless. Upon review, while we agree the instruction, as given, was unconstitutional, we do not find the error harmless and we reverse.
The instruction Hernandez challenged read:
There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by evidence that the contrary is true.
Rec. I, Doc. 57.
In Myrick v. Maschner, 799 F.2d 642 (10th Cir.1986), we held that this instruction “unconstitutionally shifted the burden of proving intent to the accused, resulting in a denial of due process.” Id. at 645 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). Therefore, we agree with the district court that the trial court erred in giving this instruction.
Having found error in the tendering of the ... instruction, we must determine whether the error was harmless under the circumstances of this case. The standard by which we undertake this last step in our review is very strict. Because we deal with an error of constitutional dimensions, we may only allow the conviction to stand if we find beyond a reasonable doubt that the error was harmless. “If the ‘record accommodates a construction of events that supports a guilty verdict, but it does not compel such a construction,’ then reversal is necessary.” Thus at this stage of the analysis we must determine de novo whether the evidence before the jury that the defendant [intended to commit murder] was so compelling the jury would necessarily find [defendant] guilty beyond a reasonable doubt, even without the [erroneous] instruction.
United States v. de Francisco-Lopez, 939 F.2d 1405, 1412 (10th Cir.1991) (citations omitted) (emphasis added).
The district court held the error harmless because (1) Hernandez asserted a defense of self-defense “thus minimizing the importance of the intent instruction,” District Court Memorandum and Order at 2-3 (citing to Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977-78, 74 L.Ed.2d 823 (1983)); (2) the evidence against Hernandez was significant; and (3) the jury was properly instructed that the burden was upon the state to prove guilt, not upon Hernandez to prove his innocence and, therefore, “the improper instruction did not have meaningful effect on the deliberations of the jury.” District Court Memorandum and Order at 2-3. We examine these holdings seriatim.
A defendant’s assertion of self-defense does not necessarily admit intent to commit murder. In Johnson, the Court held that in presenting such a defense, “a defendant may in some cases admit that the act” was intentional. 460 U.S. at 87, 103 S.Ct. at 977-78 (emphasis added). We find no such admission here. Indeed, the defense argued Hernandez did not intend to kill the victim.
The district court also held that significant evidence of intent was presented at trial. In examining this holding, we must “make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.” Yates v. Evatt, — U.S. -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991). We first look at what evidence presented to the jury tended to prove or disprove the presumption of intent. Id. Next, we weigh the probative force of that evidence against the probative force of the presumption standing alone. Id.
The evidence showed Hernandez shot and killed a fellow patron of a club in Wichita, Kansas. The two had had prior altercations including one two years previously when Hernandez had been beaten severely enough to require medical attention. The two men argued at the club the night of the murder.
Less than an hour after the argument, Hernandez went to the table where the victim was sitting and fired four shots at him. Two shots to the victim’s head and chest were fatal, the other two, one of which struck the victim in the arm and one of which grazed the victim’s arm, were not. Hernandez was restrained by another patron, Perez. The evidence was unclear whether Hernandez was restrained after only two shots had been fired or after all four shots had been fired. The bartender/eo-owner testified he thought only one shot had been fired prior to the one which hit him in the ankle, apparently after grazing the victim’s arm.
Testimony was presented that after the shooting Hernandez stated: “I did it. I shot him.” Tr. at 397. He also stated two or three times “I been waiting for a long time to do this.” Id. at 465. Hernandez responded to questions from another patron as to why he had shot the victim by saying: “Because he broke my teeth.” Id. at 332.
The defense attempted to discredit this testimony by eliciting the information that one witness was currently on probation following her conviction for forgery. The defense also pointed out in closing argument that the victim’s wife and Mr. Perez did not corroborate any of the statements attributed to Hernandez after the shooting.
The defense presented testimony from an investigating detective that the two nonlethal shots appeared to have been aimed shots because they were close together. This testimony supported the defense’s theory that “the two nonlethal shots were the first shots fired; further, that the two lethal shots were fired while Perez was struggling with defendant, and that the fatal shots were fired when defendant did not have complete control of the gun.” Hernandez, 607 P.2d at 457. Therefore, the defense concluded, Hernandez did not intend to kill the victim.
Another defense witness who overheard the altercation between Hernandez and the victim in the bar that night, testified that the victim had been “bothering” Hernandez. The victim hit Hernandez twice in the face with his hand and kicked him once in the stomach. He also testified that the victim told Hernandez to “go out right now. If you no go now, I’ll wait for you outside and I’ll kill you.” Tr. at 655. The defense thus contended that Hernandez acted in self-defense because he was afraid the victim would again beat him or kill him.
After weighing the probative force of this evidence against the probative force of the presumption standing alone, we cannot say the jury “actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” Yates, 111 S.Ct. at 1893. If the defense’s theory of the events is correct, Hernandez may have intended only to wound the victim. Obviously, he may have intended murder. The evidence is not so strong, however, that we can say Hernandez’s intent to kill was established beyond a reasonable doubt independently of the unconstitutional instruction.
Finally, the district court held that the jury instructions, as a whole, cured any error because the jury was instructed that the state bore the burden of proving guilt. In reviewing this factor, we look at the instructions and apply “that customary presumption that jurors follow instructions.” Id. The jury was properly instructed regarding the state’s burden of guilt. The government, however, appears to have attempted to meet its burden, at least in part, by means of the unconstitutional instruction. Further, “[bjecause a mandatory re-buttable presumption no doubt eases the jury’s task, ‘ “there is no reason to believe the jury would have deliberately undertaken the more difficult task” of evaluating the evidence of intent.’ ” Wiley, 767 F.2d at 683 (quoting Johnson, 460 U.S. at 85, 103 S.Ct. at 976 (quoting Sandstrom, 442 U.S. at 526 n. 13, 99 S.Ct. at 2460 n. 13)). Although some evidence was presented rebutting the presumption, we cannot confidently say the jury’s verdict did not rest on the presumption as well as the evidence. Yates 111 S.Ct. at 1195. Therefore, we cannot say the jury instructions as a whole cured the problem.
The record, while it may support the jury’s guilty verdict, does not compel such a result absent consideration of the unconstitutional jury instruction. “The burden-shifting jury instruction[ ] found to have been erroneous in this case may not be excused as harmless error.” Id., at 1197.
Hernandez’s motion to proceed in forma pauperis on appeal and for a certificate of probable cause is GRANTED. The judgment of the United States District Court for the District of Kansas is REVERSED, and the case is REMANDED with directions to grant the writ if the state court does not retry Hernandez within a reasonable period of time.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
. Whether Sandstrom applies retroactively is not an issue here because Sandstrom was decided before the Kansas Supreme Court decided Hernandez’s direct appeal. See Wiley v. Rayl, 767 F.2d 679, 681 n. 1 (10th Cir.1985).
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_usc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
COMMISSIONER OF INTERNAL REVENUE v. KELLEY et al.
No. 2939.
Circuit Court of Appeals, First Circuit.
Dec. 1, 1934.
Arnold Raurn, Sp. Asst. Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for petitioner for review.
Joseph W. Worthen, of Boston, Mass. (Holmes & Worthen, of Boston, Mass., and George M. Morris, Allen H. Gardner, and Morris, KixMiller & Baar, all of Washington, D. C., on the brief), for Kelley et al., trustees.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is a petition for review of a decision of: the Board of Tax Appeals under sections 1001-1003 of the Revenue Act of 1926, as amended by the Revenue Act of 1928 (section 603) and the Revenue Act 1932 (section 1101, subd. a [26 USCA §1 122A-1226]). The question presented is whether a common-law trust created by the respondents in 1925 is an association within the definition laid down in the case of: Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 68 L. Ed. 949, and therefore subject to be taxed as though a corporation. Section 2 (a) (2) of the Revenue Act 1926, 26 USCA § 1262 (a) (2), and section 701 (a) (2) of the Revenue Act 1928, 26 USCA § 2701 (a) (2).
Under such a petition only questions of law can be reviewed. All findings of fact by the Board of Tax Appeals in this ease are agreed to by the parties.
The business of the Union Paste Company, under which name the trustees did business from 1925 to 1930, had been established by the petitioners’ grandfather in 1866, and was conducted under a family partnership until the creation of this trust in November, 1925.
In 1912, Anthony Kelley, the father of these petitioners, the petitioners themselves, and another son, Chester B'. Kelley, entered into a new partnership agreement under which it was agreed that upon the death of Anthony Kelley the partnership business should be divided among the three sons; but his wife, E. Florence Kelley, should during her lifetime receive 25 per cent, of the net income of the business, and that upon the death of either one of the sons, the wife of such deceased son should receive 10 per cent, of the net income for a period of not more than ten years.
Anthony Kelley died in 1917, and the partnership business was thereafter carried on by the three sons until 1920', when Chester B. Kelley died.
From the time of the death of Anthony Kelley in 1917, payments were made to E. Florence Kelley of 25 per cent, of the net income in accordance with the partnership agreement, which it was understood was in lieu of her right to an accounting of her husband’s share in the partnership assets.
Following the death of Chester B. Kelley in 1920, 10 per cent, of the net income was paid to his widow, Helen W. Kelley, until 1925, when she became dissatisfied and claimed the right to an accounting of her husband’s interest in the partnership assets and proceeded to litigate her interest, which was not decided until 1930.
Oh November 2, .1925, the petitioners, Joshua C. Kelley and Herbert W. Kelley, Helen W. Kelley having refused to enter into an agreement defining her interest in the business, executed a declaration of trust, which it is admitted was created “not for corporate purposes or ends, but as a temporary measure to ensure a binding determination of the interest of Helen W. Kelley in the enterprise.” It is also admitted that a form of trust was adopted after corporate forms and partnership relations had been rejected by the surviving partners.
It is true that in form the declaration of trust was broad in its powers, and contained many provisions similar to those of the usual articles of association or corporate charters, and the trust was authorized to acquire and carry on the business of the Union Paste Company, and also to acquire trade-names, formulae, inventions, letters patent, to assign, transfer, mortgage, and deal in personal property of all kinds, issue bonds and debentures when necessary for carrying on the business of the trust, purchase, invest in, hold, own, mortgage, or pledge shares of capital stock, bonds, mortgages, or other securities of corporations, and to sell or exchange the assets of the trust and to do a general manufacturing and mercantile business.
It was provided in the declaration of. trust that the trustees could use the name of Union Paste Company in executing contracts and signing checks, notes, drafts, and bonds; and might appoint a president, treasurer, and clerk; that meetings of the trustees might be held and a record kept; it provided that certificates might be issued to the cestuis qui trustent, but such certificates should not be transferable unless the trustees so determined; it provided that there should be issued to the petitioner Joshua C. Kelley a certificate for forty-five shares of beneficial interest under the trust, and to the petitioner Herbert W. Kelley thirty shares of beneficial interest; it also provided for the payment to E. Florence Kelley of 25 per cent, of the net earnings of the business after certain deductions, which apparently was considered as representing the other 25 per cent, of the beneficial interest.
No certificates of beneficial interest were issued to E. Florence Kelley or to Helen W. Kelley, nor was any provision made in the declaration of trust for the payment to Helen W. Kelley of any part of the net income, her interest then being in litigation.
The term of the trust was three years after the death of the last survivor of the two trustees, unless terminated sooner by vote of the trustees.
It is admitted, however, that Joshua C. Kelley and Herbert W. Kelley, the instant trustees, had complete charge of the trust affairs during the years 1926, 1927, and 1928, and, although the former was designated in the declaration of trust as president and treasurer, and the latter as clerk, they conducted the enterprise in the same manner as they had theretofore conducted the partnership; that Joshua C. Kelley attended to the financial matters, including the distribution of profits to the beneficiaries, and Herbert W. Kelley served as chemist and directed the manufacturing. Neither E. Florence Kelley nor Helen W. Kelley had any control over the trust affairs; that no meetings were ever held by the trustees alone or with E. Florence Kelley and Helen W. Kelley; that each of the trustees attended to his duties in the conduct of the business and informed the other of what he was doing from time to time; that the trust had no minute books, no bylaws, and no directors. The trust had a seal which was used in filing tax returns and claims in bankruptcy; that the trustees did not issue bonds or debentures of any kind and did not attempt to secure outside capital and the enterprise remained a family affair; that on a few occasions on which they borrowed money, in each instance the creditor required that they indorse the note as individuals.
During the taxable period here in question, 25 per cent, of the net income was paid to E. Florence Kelley, and 10 per cent, was credited to a suspense account to provide for the payment to Helen W. Kelley when her rights were determined.
The Commissioner found that the trust thus created was an association within the definition laid down in Hecht v. Malley, supra, and was taxable as a corporation, and assessed a deficiency tax for the years 1926, 1927, and 1928, and to the amount for the respective years of $22,199.64, $19,384.67, and $21,823.19.
The Board of Tax Appeals upon a petition by the trustees for a redetermination held that the trust was not a body of persons doing business according to the forms and general mode of procedure of a corporation ; or, in other words, was not an association, but was taxable as a trust, and found the deficiencies for the years 1926, 1927, and 1928 should be respectively $9.34, $4.23, and $52.23.
While the powers of the trustees under the declaration of trust were broad and the form of organization authorized in the declaration of trust was similar in many respects to that of a corporation, the trustees never exercised these powers; and, although Joshua C. Kelley in the declaration of trust was named as president and treasurer, and Herbert W. Kelley as clerk, it does not appear that either ever performed the usual duties of the office to which he was appointed. It is admitted that the two trustees conducted the business just as they had been accustomed to do as partners, and that upon the termination of the litigation with Helen W. Kelley in 1930, they terminated the trust and entered into a new partnership agreement.
Whether a common-law trust is an association within the meaning of the Revenue Act is not always easy of determination. The decisions in which the courts have attempted to draw the line of demarkation between a trust and an association have left it very vague and difficult of application. No absolute rule for such classification has yet been laid down by the Supreme Court, and the Regulations of the Treasury Department, 74, Art. 1314, cannot be held to be exclusive in defining the line between a trust and an association.
In Morriss Realty Co. v. Commissioner, 23 B. T. A. 1076, 1084, the Board of Tax Appeals laid down as a triple test:
“(1) Business purpose; (2) business operations; and (3) quasi-corporate structure” ; ahd adding: “There has unavoidably been some variation in emphasis, depending upon the particular facts of the case, put by various courts upon these tests.”
In Ittleson v. Anderson (D. C.) 2 F. Supp. 716, 719, the court said:
“Under the opinion from which the foregoing excerpts have been quoted, there appear to be three elemental requisites to a trust which, under the capital stock tax statutes, is to be regarded as an ‘association’: (1) It should have a ‘quasi corporate form’; (2) its trustees should be ‘associated together in much the same manner as the directors in a corporation’; and (3) the trustees must be engaged in carrying on a business.”
In some eases, especially where the issue was the imposition of an excise tax to do business, emphasis has been laid on whether they were conducting a business for profit, or on the business test, so called, Hecht v. Malley, supra; in others, the form in which the affairs of the trust was carried on seems to have been the controlling factor in determining whether the organization was an association or a simple trust, Twin Bell Oil Syndicate v. Helvering (C. C. A.) 70 F.(2d) 402; Commissioner v. Pryor & Lockhart Development Co. (C. C. A.) 70 F.(2d) 154, 158; Gardiner v. United States (C. C. A.) 49 F.(2d) 992; Lucas v. Extension Oil Co. (C. C. A.) 47 F.(2d) 65; while in the ease of Commissioner v. Morriss Realty Co. (C. C. A.) 68 F.(2d) 648, at page 652, the court said, quoting Morriss Realty Co. Trust No. 1 v. Commissioner, 23 B. T. A. 1085:
“But even if we say that they [the trustees] were engaged in business we must not lose sight of the original purpose for which the trust was created, that of liquidation of the property; and the doing of other acts incidental to this ultimate purpose would be justified on the ground of conservation of property and securing the means of earlier liquidation.”
The courts have also said that, in determining whether a trust is taxable as a corporation, substance rather than form is to be regarded; but each case must be determined on its own facts.
In addition to the above eases, the Board of Tax Appeals and the courts have had occasion to pass upon this question in a variety of forms, sometimes emphasizing one test and sometimes another. See Blair v. Wilson Syndicate Trust (C. C. A.) 39 F.(2d) 43; Commissioner v. Atherton (C. C. A.) 50 F.(2d) 740; Commissioner v. Morriss Realty Co., supra; Dunbar v. Commissioner (C. C. A.) 65 F.(2d) 447; Ittleson v.Anderson, supra; Lansdowne Realty Trust v. Commissioner (C. C. A.) 50 F.(2d) 56; Tyson et al. v. Commissioner (C. C. A.) 54 F.(2d) 29; Crocker v. Malley, 249 U. S. 223, 39 S. Ct. 270, 63 L. Ed. 573, 2 A. L. R. 1601; Burk-Waggoner Oil Association v. Hopkins, 269 U. S. 110, 46 S. Ct. 48, 70 L. Ed. 183; Investment Trust of Mutual Investment Co. v. Commissioner, 27 B. T. A. 1322; Morriss Realty Co. v. Commissioner, 23 B. T. A. 1076.
These do not by any means include all of the decisions of the court, or the Board of Tax Appeals, in which this question was involved, but they are sufficient to indicate how difficult it is to determine from them any absolute or conclusive test.
From the eases cited, however, it may be deduced that there is no law prohibiting trustees from carrying on business for profit; but if the trustees are given absolute control over the business and the eestuis qui trustent have no control, either over the trustees or the business, such a trust is not taxable as a corporation. If the purpose of the trust is a temporary one, as in the ease of liquidating a business, or under the trust the trustees are merely a means for the distribution of income or property, it is not taxable as a corporation.
We can, at least, start in this ease with the proposition that this was not a corporation or a partnership, and it was admitted that the surviving partners rejected both forms of conducting their business during the litigation with Helen W. Kelley.
While the trust here involved can be said to be an organized body without a charter, the main issue, as we view it, is not whether they conducted a business and for profit, but whether they conducted such business from 1925 to 1930 “upon the methods and forms used by incorporated bodies,” or as an organization “having the general form and mode of procedure of a corporation.”
While under the declaration of trust they could have used many of the forms and modes of procedure of a corporation, they did not do so during the continuance of the trust.
In the first place, it is admitted that the sole purpose in organizing the trust was a temporary one, viz., to bring to a conclusive binding determination the interest of Helen W. Kelley in the income of the enterprise. The government seeks to distinguish between motive and purpose; but while the motive for the creation of this trust was the demand of Helen W. Kelley for an accounting, the purpose of creating the trust is admitted to have been to secure a conclusive, binding determination of her interest, and, incidentally, during the pending litigation, to conduct the business along the same lines as under the partnership, with the trustees having full control.
Corporate forms are used ordinarily to secure continued existence of the entity; here, the purpose was temporary, and, as soon as accomplished, the trust was terminated and the partnership form revived. Under corporate forms the shareholders elect the directors and have certain control, at least, in a negative way, over the corporate property; here, the beneficiaries as such had no control over the trustees, nor did they elect them. Corporate shares of stock are transferable; here, the certificates to beneficiaries were not transferable, though the trustees who held them all could at a meeting make them transferable. Directors or stockholders under bylaws hold meetings for transacting the corporate business; here, there were no bylaws, nor were any meetings of the trustees ever held under the declaration of trust. Corporations are, in general, required to have at least three directors, in order that a majority may act; but here, there were only two trustees, and under a private trust all trustees must consent to any action unless otherwise stipulated in the trust agreement. Perry on Trusts (7th Ed.), § 413.
The determining factor in this ease, we think, is not what the trustees could have done under the declaration of trust, nor yet whether in carrying out the purpose for which the trust was created, the trustees were conducting a business and for profit; but the form and manner in which they proceeded in conducting the affairs which were intrusted into their hands during the existence of the trust. Gardiner v. United States, supra; Dunbar et al. v. Commissioner, supra; Lucas v. Extension Oil Co., supra; Commissioner v. Duckwitz (C. C. A.) 68 F.(2d) 629; Commissioner v. Pryor & Lockhart Development Co., supra, page 158 of 70 F.(2d).
In the last-cited case the court well stated the controlling factors in determining how “a body of persons” without a charier doing business should be treated in assessing an income tax :
“Where an entity of this kind resembles a corporation in some respects and that of a partnership in others — that frequently being the case — the features of similarity should be compared and the marks of dissimilarity contrasted. The resemblances should be balanced. It should be determined by that method the one to which the enterprise is predominantly akin in the method, mode, and form of procedure in the conduct of its business. If it be a corporation, it falls within that category; if a partnership, it should be placed in that class and should be taxed accordingly. Tyson v. Commissioner, supra. In Lucas, Commissioner, v. Extension Oil Co. (C. C. A.) 47 F.(2d) 65, 67, involving facts similar to those presented here, the court declared the applicable doctrine as follows:
“ “The Board of Tax Appeals in a careful opinion, balancing the resemblances which petitioner in its structure bore to a trust, against those which it bore to a corporation, and considering also the facts as to what the petitioner actually did, found as a fact and concluded as a matter of law that petitioner was not an association within the meaning of the taxing act, “voluntarily organized to transact business under corporate forms and transacting such business.”
“ ‘With this opinion we agree, for we think it plain that whether the matter be decided from the standpoint of an analysis and balancing of resemblances to corporate forms, in the light of what use the petitioner made of them, as was done by the board, or whether, these resemblances aside, the matter is decided, not upon the basis of the powers potentially held by the petitioner, but of those actually used by it, upon what it did, rather than upon what it could do, a regard for the realities of the ease before us permits no other decision.’ ”
To constitute a trust an association, and taxable as a corporation, there must be a body of persons associated together who aro (1) actually carrying on business for profit, and (2) under the usual forms and procedure of corporations. Both conditions must be present. On the admitted facts in this case, we find no errors of law in the decision of the Board.
The decision of the Board of Tax Appeals is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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.
Thomas F. CLARDY, Appellant, v. DUKE UNIVERSITY, a corporation, and R. Charman Carroll, Appellees.
No. 8466.
United States Court of Appeals Fourth Circuit.
Argued Jan. 10, 1962.
Decided Feb. 8, 1962.
Wallace McGregor, Washington, D. C., on the brief for appellant.
Harry DuMont, Asheville, N. C. (Uzzell & DuMont, Asheville, N. C., on the brief), for Appellee Duke University.
William C. Meekins, Asheville, N. C. (Meekins, Packer & Roberts, Asheville, N. C., on the brief), for Appellee R. Char-man Carroll.
Before BOREMAN and BELL, Circuit Judges, and PREYER, District Judge.
PER CURIAM.
In this diversity action, Thomas F. Clardy charges that on and before April 1955 he was under the professional care of defendant Carroll, an employee of Duke University, and that he sustained permanent brain damage from electric shock and insulin shock therapy recommended and administered by Dr. Carroll at Duke University Hospital as treatment for a mental disorder. Clardy complains that “about August 1957” he discovered for the first time the damage to his brain.
The complaint was filed on July 22, 1960, and summons issued on August 24, 1960. Neither defendant filed an answer but each timely moved for dismissal or, in the alternative, for summary judgment on the principal ground that the action was barred by the North Carolina statutory three-year period of limitation. A hearing on the motions was scheduled for November 17, 1960, but was continued without objection upon plaintiff’s request. Later, after due notice, a hearing was held by the court on May 17, 1961. Neither plaintiff nor his counsel was present. Upon full inquiry and after examining the complaint, the motions and the uncontroverted affidavit of defendant Carroll, the court granted summary judgment in favor of both defendants, finding and concluding that it appeared upon the face of the complaint that the action was barred by the statute since it was not instituted within three years after the cause of action arose. On June 12, 1961, plaintiff’s counsel served and filed a “Motion for Reconsideration” praying that the court “reconsider” its summary judgment order or, alternatively, that leave be granted to file an amended complaint. On July 20, 1961, the District Court denied the motion. We perceive no error.
The principal question presented is whether the statute of limitation began to run on the date of the alleged injury or on the date when the injury was discovered. Under Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the District Court properly applied the decisional and statutory laws of the State of North Carolina.
The North Carolina Supreme Court has consistently held, in applying the statutory provisions to actions involving the alleged tortious conduct of physicians and surgeons, that the cause of action arises when the alleged wrongful act is committed. Plaintiff contends (1) that the rule is not applicable where there has been a fraudulent concealment from the patient of the physician’s tortious conduct, and (2) that the language of the complaint is sufficient to clearly imply that defendant Carroll, as a physician, had medical knowledge which she purposely concealed. We do not agree with plaintiff’s contention (2) above.
The District Court correctly held that this action is barred by the three-year statute of limitation, which period began to run at the time of plaintiff’s alleged injury.
The motion for reconsideration prayed for leave to amend the complaint and plaintiff points to Rule 15(a) of Federal Rules of Civil Procedure, 28 U.S. C.A., to support his argument that leave should have been granted. Rule 15(a) pertinently provides that a party may amend his pleading once as a matter of course before the serving of a responsive pleading, but thereafter only by leave of the court or written consent of the adverse party. Defendants concede that the motion for summary judgment was not a pleading responsive to the complaint but Rule 12 F.R.C.P. provides for summary judgment upon motion and there is no requirement that a responsive pleading be served before moving for summary judgment. Thus, it appears that plaintiff might have amended his complaint without leave of court prior to summary judgment. However, it is not unreasonable to conclude that, by filing motion for leave to amend, Clardy concedes that he could not amend his complaint as a matter of right. If it should be held that plaintiff could amend without leave after a hearing and the granting of summary judgment against him, the effect would be to clothe a litigant with the power, at any time, to reopen a case and possibly to set aside a judgment rendered against him by the court. Rule 15(a) is not to be construed so as to render Rule 12 meaningless and ineffective. The District Court correctly denied the motion for leave to amend.
Affirmed.
. N.C.G.S. 1-46, 1-52, subsection 5 (1953).
. See Shearin v. Lloyd, 246 N.C. 363, 93 S.E.2d 508 (1957); Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320 (1952); Connor v. Schenck, 240 N.C. 794, 84 S.E.2d 175 (1954). See also Summers v. Wallace Hospital, 276 F.2d 831 (9th Cir.. 1960), where it appears that the North Carolina rule is in accord with the great weight of authority in this country.
Counsel for plaintiff made no personal appearance before the District Court at any stage of the proceeding. Without notice, explanation or permission, he failed to appear before this court for oral argument. His display of indifference is incomprehensible and is to be severely censured. The plaintiff’s case will be treated as submitted on brief. Counsel for both defendants personally appeared for argument and if they bad been extended the courtesy of a notice that counsel for the plaintiff would not appear, they, had they so desired, could have submitted the case on brief and could have avoided the expense and inconvenience involved in traveling from Ashe-ville, North Carolina, to Richmond, Virginia.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc1sect
|
157
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
MONTGOMERY WARD & CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.
No. 490.
Circuit Court of Appeals, Eighth Circuit.
Dec. 2, 1940.
Stuart S. Ball, of Chicago, 111. (John A. Barr and R. F. Walker Smith, both of Chicago, 111., on the brief), for petitioner.
Allen Heald, of Washington, D. C., (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Joseph Friedman and Thomas F.'Wilson, all of Washington, D. C., on the brief), for National Labor Relations Board.
Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge.
SANBORN, Circuit Judge.
The petitioner, Montgomery Ward & Co., Inc., asks for the reversal of an order of the National Labor Relations Board, which, so far as now pertinent, requires the petitioner to cease and desist from “either directly or indirectly engaging in any manner of espionage or surveillance, or engaging the services of any agency or individuals for the purpose of interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection; * * * ”; and requires the petitioner (respondent before the Board) to take the following affirmative action: “Notify in writing all its present and any future under-cover operatives at the St. Paul house that they shall not spy upon the respondent’s [petitioner’s] employees in their exercise of the right to self-organization, to form, join, or assist labor organizations of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection, and that they shall not report to the respondent [petitioner] regarding such exercise by the respondent’s [petitioner’s] employees; * * The Board asks for the enforcement of this order.
The Board, in 1938, upon charges filed by Warehouse Employees’ Union No. 20,297, affiliated with the A. F. of L., issued its complaint, which, as finally amended, alleged that petitioner, following a strike at its St. Paul house, had refused to reinstate fifteen employees because they had struck and had engaged in concerted activities for the purpose of collective bargaining, and that the petitioner had thus discriminated in regard to their hire and tenure of employment, in violation of § 8(3) of the National Labor Relations Act. 249 Stat. 449, 452; 29 U.S.C.A. § 158 (3). The complaint further alleged that petitioner had maintained a system of espionage and had advised and warned its employees to refrain from joining the union, and thus had violated § 8(1) .of the Act. The petitioner, in its answer, conceded that the Board had jurisdiction, but denied having committed any unfair labor practices. A hearing was had before a Trial Examiner designated by the Board, at St. Paul, Minnesota. The Trial Examiner subsequently recommended that petitioner be ordered to cease and desist from interfering with the rights of its employees guaranteed by § 7 of the Act, 29 U.S.C.A. § 157; *and, further, that it be required to reinstate, with back pay, three of fifteen employees named in the complaint, and that the complaint with respect to the other twelve be dismissed. The petitioner filed exceptions to this report, and, after a hearing, the Board decided that petitioner had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by § 7 of the Act, thus violating § 8(1) of the Act, but that petitioner had not discriminated in regard to the hire and tenure of employment of any of the .fifteen employees named in the complaint, and had not violated § 8(3) of the Act. In addition to the order requiring the petitioner to cease and desist from violating § 8(1) of the Act, the Board ordered it to place the fifteen employees named in the complaint on a preferential list, to be offered employment when available, and to reinstate them to their former or equivalent positions before it hired others therefor. The complaint, in so-far as it alleged that petitioner had discriminated against the fifteen employees named in the complaint, was dismissed.
'In this court the Board, in its response to the petition for. the review of its order, asserted the validity of the entire order, and requested its enforcement, but in its brief it has requested the elimination from the order of all reference to placing the fifteen named employees upon a preferential list. Only so much of the order as relates to the alleged violation of § 8(1) of the Act, through petitioner’s use of a system of espionage, need be discussed.
The facts out of which this controversy arises are not seriously in dispute. It is the inferences, drawn by the Board from the facts, that the petitioner challenges.
The petitioner is' an Illinois corporation engaged in merchandising, with its main office and place of business in Chicago. It owns and operates a large retail and mail order house or establishment in St. Paul, Minnesota. For a long timé the petitioner has maintained a system of espionage or surveillance of its employees, which has been primarily used for obtaining information relative to matters in which it has a direct and proper interest, such as the honesty, moral character, and efficiency of the large number of employees who work in its establishment at St. Paul. These matters were not in any way related to the rights of its employees guaranteed by § 7 of the National Labor Relations Act. In 1936, 1937 and 1938 the system was utilized by the petitioner to secure information as to the attitude of its employees' toward unionization and with respect to union activities; and it was this use of the system which caused the filing of charges by the union with the Board that petitioner had interfered with the rights of its employees and thus violated § 8(1) of the Act.
The evidence disclosed that the head of petitioner’s espionage or secret service system at St. Paul was the chief of petitioner’s ■store police. His operatives were secured-from among the regular employees of petitioner, who received, as their compensation for this special sérvice, either extra pay ■or promises of an increase in pay or of promotion. Confidential instructions were .given to the operatives, both verbal and in writing, by the chief of the system. They were directed to report thefts and irregularities of fellow employees which re•quired immediate attention to the Personnel Director of petitioner, or, in case of necessity, to the chief. At the end of each week, each operative was required to mail a ■confidential report, containing matters of interest, to the chief at his residence ad■dress, or, in case of his absence, to the residence address of the Personnel Director. The operatives were instructed to report -fairly and impartially upon both the bad and the good qualities of their fellow employees. The reports were to show “the true attitude of employees regarding their work, efficiency, attitude towards their immediate superiors, the management or company in general, employees’ outstanding qualities or dishonest or careless tendencies.” The operatives were advised that all information furnished was to be held in strictest confidence and referred only to the management.
In June, 1936, the operatives received from their chief a letter which contained the following: “The management is very much interested in knowing the full details of the present labor situation throughout the house, namely, what the attitude is of the persons who have recently joined Local 120, what benefits they expect to derive from it, what their general attitude is towards this movement, also if there is any talk of organizing the house as a whole. * * * Please destroy this letter as soon as read.”
In December, 1936, after an affiliated union had initiated the unionization of petitioner’s employees, the . chief wrote his operatives as follows:
“Labor organizers are again at work among Ward employees. As usual, they are using the Government as an excuse to encourage organization among employees and to directly profit themselves.
“A number of Ward employees have received a letter soliciting membership in The National Union of Mail Order Employees. This letter is signed ‘The Committee’, although a Saint Paul attorney, John T. O’Donnell at 519 New York Building, is named in the letter.
“This is the way many organizations start and many times in the end cause trouble between companies and employees, with the result that both lose. You know that your company is anxious to do what is fair to its employees and, therefore, please be sure to report as soon as possible any discussions you hear of this new effort to cause trouble within the Ward organization.”
Organization of the union in petitioner’s establishment in St. Paul was completed in the early spridg of 1937. In April of that year the chief told one of petitioner’s employees, whom he was asking to join his force of operatives, “that there was a lot of talk now about the union and they wanted to know more about this because the union was, well, bad business for employees as well as the company, that it would cause trouble between the employees and the company and they wanted to have everything peaceable, did not want to have any trouble, * * The operatives were requested to keep in touch with the labor situation not only on petitioner’s premises, but also outside. At least two operatives were asked to-attend union meetings and to report upon them. One operative was asked to join the union at petitioner’s expense, and the chief, on one occasion, apparently when in high spirits, publicly boasted that he had undercover agents in the union who kept him in touch with everything the union was doing. In December, 1937, the union called a strike of petitioner’s St. Paul employees, which extended through the holidays, and was not successful. There is»no direct evidence that the petitioner actually used the information secured through its espionage system to influence or coerce any of its employees with respect to joining or not joining a union or with respect to wages or conditions of employment.
The petitioner’s position is that proof of the use by an employer of a system of espionage to acquire information as to the union affiliations and union activities of his employees is not, standing alone, sufficient to establish a violation of § 8(1) of the Act, and that it only becomes sufficient when there.is other evidence to show that the system actually constituted an interference with the rights of the employees guaranteed by § 7 of the Act.
The position of the Board is that proof of the use of such a system for such a purpose by an employer is in and of itself sufficient evidence to support a finding of a violation of § 8(1) of the Act, but that, even if it is not, other evidence in this case sustains the finding of the Board that the petitioner was guilty of a violation of that section.
There was evidence in the record from which the Board might have found that the responsible officers of the petitioner did not actually use the information secured through the espionage system to interfere with the rights of its employees guaranteed by the act^ that in 1938 the petitioner discarded the system in so far as it touched upon union affiliations and activities of its employees, and that there was no likelihood of a resumption of the use of the system for procuring information about such matters. However, we think that the Board was not compelled to find noninterference with the employees’ rights, and was not precluded from finding that the use of the system which the Board found objectionable might recur. Compare Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126.
For the purposes of this opinion, we shall assume, without deciding, that proof of the maintenance by an employer of a system of espionage, one of the purposes of which is to secure information relative to-the attitude of his employees toward self-organization, joining a union, and kindred matters, is not alone sufficient to justify a finding that § 8(1) of the Act has been-violated by him. The Board in its decision expressed the opinion that such proof was,, alone, sufficient, but if its finding that petitioner violated § 8(1) is justified by the-evidence as a whole, we are satisfied that the order of the Board should be affirmed.
In addition to proof of the existence of the espionage system and its use, there is-evidence, as already pointed out, that the chief of the system had a bias against the union, which he communicated to some of petitioner’s employees, and certainly to-those whom he engaged as operatives. The statements of the chief, before referred to, tended to characterize the system, in so far as it was used to gather information relative to the union affiliations and activities-of petitioner's employees, as one antagonistic to unionization. Moreover, from the-evidence that the chief of the system had openly stated that he had operatives in the union, the Board could reasonably infer that the employees could hardly be ignorant-of the existence of the system and of the interest of the petitioner in ascertaining their labor affiliations and activities. It is. scarcely conceivable, we think, that the statements of the chief of the system and the knowledge of the employees of the use-of the system to spy upon their union activities could have been without some effect, upon their freedom in the exercise of the rights guaranteed by § 7 of the Act.
The petitioner contends that the statements of the chief antagonistic to the-unionization of the employees may not properly be charged against it, but should, be considered an expression of his personal views. He was, however, the supervisor of the system for petitioner, and it is not unreasonable to suppose that, as such, he: knew what information was desired by the petitioner and the purpose for which it was desired. It was his duty to instruct the employees who were acting as his operatives. His relation to the petitioner and the nature of his employment and duties were such that we think the Board was justified in concluding that his statements with respect to the unionization of the employees were attributable to petitioner. The distinction . between statements made by the head of an espionage system which are germane to the-business entrusted to him by the employer and the statements made by a supervisory employee working on a match machine, which were considered by this court in Cup-pies Co. Manufacturers v. National Labor Relations Board, 106 F.2d 100, 114-116, is too obvious to require discussion.
The suggestion by petitioner that the order of the Board will prevent petitioner from using its system of espionage for the purposé of detecting thefts and irregularities of its employees, is clearly without merit. The order of the Board merely prevents the petitioner from using the system for the purpose of interfering with, restraining or coercing its employees in respect to the rights guaranteed by § 7 of the Act.
Our conclusion is that, under the evidence, the question of whether the petitioner had violated § 8(1) of the Act is not a question of law for this court to decide, but was a question of fact for the Board to determine, and that its finding is conclusive upon the petitioner and upon this court. See and compare: National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 54, 57 S.Ct. 642, 630, 81 L.Ed. 918, 108 A.L.R. 1352; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 75, 57 S.Ct. 645, 630, 81 L.Ed. 921, 108 A.L.R. 1352; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126; Fort Wayne Corrugated Paper Co. v. National Labor Relations Board, 7 Cir., 111 F.2d 869, 874; Montgomery Ward & Co., Inc. v. National Labor Relations Board, 7 Cir., 107 F.2d 555, 558, 559; Link-Belt Co. v. National Labor Relations Board, 7 Cir., 110 F.2d 506, 511.
The order of the Board will, as requested by it, be modified by eliminating therefrom all reference to placing the fifteen employees named in its order on a preferential list. As so modified, the enforcement of the order is directed.
“Sec. 8. [§ 158], It shall be an unfair labor practice for an employer— w * * * * ^ *
“(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: * * * .”
“Sec. 8 [§ 158], It shall be an unfair labor practice for an employer—
“(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [157 of this title]”
“Sec. 7 [§ 157]. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of _ their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Anthony John ROMANELLO, Victor Antonio Mendez and Gerald Thomas Vertucci, Defendants-Appellants.
No. 83-2206.
United States Court of Appeals, Fifth Circuit.
Feb. 17, 1984.
Rehearing and Rehearing En Banc Denied April 18,1984.
Ramsey Clark, Lawrence W. Schilling, New York City, Harold Borg, Kew Gardens, N.Y., for Romanello and Mendez.
William W. Burge, Houston, Tex., for Vertucci.
James R. Gough, Ronald G. Woods, Asst. U.S. Attys., Houston, Tex., for plaintiff-ap-pellee.
Before GOLDBERG, GEE and TATE, Circuit Judges.
GOLDBERG, Circuit Judge:
... I saw a lizard come darting forward on six great taloned feet and fasten itself to a [fellow soul].... [T]hey fused like hot wax, and their colors ran together until neither wretch nor monster appeared what he had been when he began ....
The joint trial of conspiracy defendants was originally deemed useful to prove that the parties planned their crimes together. However, it has become a powerful tool for the government to prove substantive crimes and to cast guilt upon a host of co-defendants. In this case, we are concerned with the specific prejudice that results when defendants become weapons against each other, clawing into each other with antagonistic defenses. Like the wretches in Dante’s hell, they may become entangled and ultimately fuse together in the eyes of the jury, so that neither defense is believed and all defendants are convicted. Under such circumstances, the trial judge abuses its discretion in failing to sever the trials of the co-defendants. Today we hold that the defense of Gerald Vertucci was antagonistic to the defenses of Anthony Romanello and Victor Mendez and that Vertucci should have been severed from his co-defendants.
I. FACTS
On December 3, 1981, Italian citizens Marcello Farneda and Giuseppi Longhin arrived at the Houston airport, carrying suitcases containing .gold chains. Farneda and Longhin were en route from Italy to Mexico. Vertucci, an employee of Air France, met Farneda and Longhin in the Customs area of the terminal. After a Customs inspection, Farneda and Longhin gave their bags to Vertucci for storage until they left for Mexico the next day (Dec. 4). Vertucci placed the bags in the Air France storeroom.
At approximately 6:30 that night (Dec. 3), Vertucci asked an Air France manager to open the storeroom. Vertucci removed the bags and loaded them into a van parked outside the terminal. Vertucci drove off. Later at trial, Vertucci’s counsel would argue that Vertucci was transferring the gold to another terminal from which Longhin and Farneda planned to depart the next day. The government would argue that Vertucci was removing the gold from the airport permanently;
At approximately 2:00 a.m. on December 4,1981, one Kenneth Ellis was awakened by his dogs. He discovered Vertucci handcuffed to a light pole at the end of Ellis’ driveway. Ellis lived in Chambers County, Texas, approximately 50 minutes by car from Houston airport.
Ellis freed Vertucci. In subsequent statements to police officials, Vertucci maintained that he had been robbed of the gold. According to his story, one man holding a gun accosted him while he was loading the gold into the van at the Air France terminal. The gunman ordered him into the van and directed him to drive away. The gunman was joined by a second man at a nearby motel parking lot. They loaded the gold into an automobile and drove off with the captive Vertucci. As they entered the automobile, Vertucci looked at the license plate but could not read it because it was bent. A short time later, the driver stopped and got out of the car, and Vertucci heard a banging noise as if the license plate were being straightened. Vertucci described the automobile as having a light-colored exterior and a dark interior. It was a large four-door, maybe a Chevrolet, about four or five years old. It had a radar detector.
According to Vertucci’s statements he was driven out to Chambers County, and handcuffed to the light pole. The gunman held his weapon against Vertucci’s head, and clicked the hammer; then he punched Vertucci three times in the head. The gunman told Vertucci that if he described his assailants they would return and kill him and his family. The assailants then drove off in their car.
Despite the threat, Vertucci described the two men to the police. He described the gunman as a white male, 5'6" to 5'7", 140 to 150 pounds, with a youngish face. The man was clean shaven with short, black, combed-back hair. He had large, brown eyes and a medium-to-olive complexion. He was wearing a leather jacket and a pullover shirt.
Vertucci described the second man as a white male, about 30 years old, six feet tall, weighing approximately 210 pounds. He had short black hair, combed back into a kind of “close Afro.” He was clean-shaven and had no sideburns. He had dark eyes and wore jeans and a long-sleeved polo shirt. He was bigger and had a lighter complexion than the gunman.
On December 5, 1981, Nick Theodos of the New Jersey State Patrol stopped a vehicle for speeding on the New Jersey Turnpike. Mendez was driving and Romanello was asleep in the back. Mendez invited Officer Theodos to search the car, and the trooper discovered two packages containing gold chains. . Officer Theodos arrested Mendez and Romanello. A subsequent investigation revealed that the gold was the same as that which Longhin and Farneda had brought into the Houston airport.
At trial Officer Theodos described the car as a two-toned, blue 1977 Chevrolet with four doors. It had a radar detector and a bent license plate. Officer Theodos did not describe Romanello and Mendez who were present at trial.
During the investigation of Romanello and Mendez, John Hensely (one of the agents who had questioned Vertucci) determined that Vertucci’s description of his assailants and their vehicle matched Romanel-lo and Mendez and their automobile. However, Vertucci was not able to pick their photographs out of a line-up.
On December 18, Romanello and Mendez were indicted by Texas state authorities for the offenses of aggravated kidnapping and robbery of Vertucci. On February 10,1982, the state charges were dismissed.
On March 29, 1982, Romanello, Mendez and Vertucci were all indicted in four felony counts by a federal grand jury. The counts were:
1. stealing jewelry in violation of 18 U.S.C. §§ 659 and 2;
2. importing jewelry into the United States in violation of 18 U.S.C. §§ 542 and 2;
3. transporting stolen goods in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2;
4. conspiring to commit the offenses described in counts 1-3 as well as to obstruct justice in violation of 18 U.S.C. § 371.
The government’s theory was that all three defendants participated in the conspiracy and performed various acts in furthering the planned crimes. Vertucci allegedly took the gold from the airport; then he was handcuffed to a pole in order to create the appearance of a robbery. His description of his “assailants” was accordingly partly accurate and partly vague. Accuracy on some points would help him remember details and appear consistent before the police; vagueness on other points would prevent the police from actually catching his co-conspirators. According to the government, Romanello and Mendez were to carry out the next stage of the theft, transporting the gold to New York. However, they were stopped by Officer Theodos before they reached their destination.
II. PROCEEDINGS BELOW
The three defendants were tried together before a jury in the United States District Court for the Southern District of Texas.
The defendants filed pretrial motions and supplemental motions for severance pursuant to Fed.Rule Crim.Proc. 14. They alleged, inter alia, that their defenses were antagonistic and that joinder would have the effect of denying them a fair trial. The parties argued the issue before the trial court, and during the trial, he entered an order denying the motion. He held that Vertucci’s defense was not sufficiently in conflict with the defenses of Romanello and Mendez to justify severance:
At the core of Vertucci’s defense of robbery and kidnapping lies his contention that he was not involved in the criminal conspiracy and that he lacked the requisite criminal intent. Mendez and Roma-nello’s claim of noninvolvement and lack of criminal intent is more apparent from their defense that they were not present at the airport at any of the relevant times and that they had no clue that the gold they attempted to transport to New York was stolen. Neither camp’s defense requires the jury to find the other guilty. Although Vertucci gave the authorities descriptions of his assailants which bear a resemblance to his co-defendants, he has never accused or identified them as being his attackers. In sum, the Court concludes that the joint trial of defendants Romanello, Mendez and Vertucci has not, to date, denied them a fair trial.
Trial Record, Vol. I, 75-76. The' judge’s conclusions partly reflect Vertucci’s failure to take the witness stand at trial and specifically point the finger at his co-defendants.
The joint trial proceeded. At the close of the evidence, the jury returned verdicts of guilty on all counts against all defendants. Vertucci was sentenced to seven years imprisonment. Romanello and Mendez were sentenced to ten years imprisonment.
This appeal follows.
III. DISCUSSION
The Rule 14 issues comprise only a small cluster within a greater galaxy of legal claims. Given our resolution of the sever-anee claim, however, we need not explore those other astral regions. Our universe is limited to the Rule 14 question.
A. Requirements for Severance
The Fifth Circuit has developed a fairly consistent litany of tests for determining whether severance is required in the “antagonistic defense” situations. This case involves a unique application of these tests, however, and raises some novel legal questions.
The hornbook rules can be found in United States v. Crawford, 581 F.2d 482 (5th Cir.1978), and United States v. Berkowitz, 662 F.2d 1127 (5th Cir. Unit B, 1981). See also United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981); United States v. Johnson, 478 F.2d 1129 (5th Cir.1973). Persons indicted together should ordinarily be tried together. Rule 14, however, provides an exception to this general rule:
If it appears that a defendant ... is prejudiced by a joinder of ... defendants ... for trial together, the court may grant a severance of defendants or provide whatever other relief justice requires.
Fed.R.Crim.Proc. 14; see Crawford, supra, 581 F.2d at 491. The decision whether to sever defendants lies within the discretion of the trial court. The court’s decision should not be overturned absent an abuse of discretion. Id.; Berkowitz, supra, 662 F.2d at 1132. In order to establish an abuse of discretion, a defendant must show that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection. Id.
When co-defendants have antagonistic defenses, the courts have applied very specific tests to determine whether the trial was unfair. To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. Berkowitz, 662 F.2d at 1133; Crawford, 581 F.2d at 491. The essence or core of the defenses must be in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve’ the core of the other. Berkowitz, 662 F.2d at 1134, Sheikh, 654 F.2d at 1065. Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense.
B. Irreconcilability and Mutual Exclusivity of the Defenses
We hold that the core of Vertucci’s defense at trial was sufficiently antagonistic to the core of the defenses of Romanello and Mendez. Vertucci claimed, through his counsel, that Romanello and Mendez had robbed him. The core of his defense was that they had taken the gold from him at gunpoint, and, therefore, he had an excuse for the gold’s disappearance. Romanello and Mendez offered the defense that they had not stolen the gold but had innocently accepted a job to drive it to New York. In line with this, they argued that Vertucci’s story was a lie invented by the real gold smugglers. Obviously these defenses are irreconcilable and mutually exclusive. If the jury believed that Romanello and Mendez robbed Vertucci, then it could not believe that they were innocent shippers. On the other hand, if the jury believed their defense, then they could not have robbed Vertucci, and his defense would cave in.
It is not necessary for each defendant to base the core of his defense on the direct accusation of his co-defendant. Severance may be required if only one defendant accuses the other, and the other denies any involvement. For example, in United States v. Johnson, supra, two defenses were held to be “completely contradictory]” though only one defendant (Smith) had incriminated his co-defendant (Johnson). 478 F.2d at 1132. The government had charged both Smith and Johnson with passing counterfeit money. Smith’s defense at trial was that he was a government informer whose only purpose was to help the police apprehend Johnson. Johnson’s sole defense was that he had “played no part in the crime and was not present when it was committed.” Id. Johnson never accused Smith; yet this Court held that “the theory of Smith’s defense was directly in conflict with Johnson’s.” Id. at 1132-33. The trials of the co-defendants should have been severed; therefore, Johnson’s conviction was reversed. Id.
In the same way, there is an irreconcilable conflict between the defenses in our case. Johnson provides clear precedent for reversing the convictions of Romanello and Mendez; and, as we shall discuss' later, Vertucci too should be retried.
1. Accusation by Vertucci’s Counsel
The government argues, however, that even the convictions of Romanello and Mendez should be affirmed because Vertucci himself never identified them as his attackers. The trial court had relied on this point in holding that the various defenses were not mutually exclusive:
Neither camp’s defense requires the jury to hold the other guilty. Although Ver-tucci gave the authorities descriptions of his assailants which bear a resemblance to his co-defendants, he has never accused or identified them as being his attackers.
Trial Record, Vol I., 76-77.
We disagree, however, with the underlying premise that Romanello and Mendez could not be identified if Vertucci himself did not do it. On the contrary, we hold that Vertucci’s counsel made the specific accusation, and that under the circumstances of this case an accusation by counsel is sufficient to create an antagonistic defense. In his opening statement to the jury, Vertuc-ci’s lawyer (Mr. Burge) declared:
[Vertucci] described his assailants. He described their vehicle. Less than two days after that, two men are arrested in New Jersey. They are stopped in New Jersey for a traffic offense, and the gold that was stolen from Gerald Vertucci was in their car.
The descriptions, when Gerald Vertucci was talking to the authorities, of the vehicle matched, and based on those descriptions that Gerald Vertucci gave in cooperating with the authorities, the state Grand Jury indicted Romanello and Mendez for aggravated robbery and aggravated kidnapping of Gerald Vertucci.
So I ask you, as you listen to the evidence, listen closely; listen closely. Don’t lump Gerald Vertucci in with the two men sitting across the table from him. Listen to the evidence as to Gerald Ver-tucci and separate him and listen to the evidence. He doesn’t have any choice but to be sitting in this courtroom today, but don’t lump him in with the other two.
Trial Record, Vol. IX, 30, 32-33. Throughout the trial, counsellor Burge reminded the jury that the state had indicted Romanello and Mendez for robbing and kidnapping his client, see, e.g., id., Vol. XIII, 23 (cross examination of John Hensely), Vol. V, 80 (cross examination of Officer Theodos); Vol. XV, 120 (closing argument); and that Vertucci had accurately described his assailants, id., Vol. XII, 76-79 (cross examination of Officer Theodos to show that Mendez’s car matched Vertucci’s description), Vol. VIII, 23 (cross examination of John Hensely), Vol. XV, 133 (closing argument).
An accusation by counsel can state the core of his client’s defense and cast blame on the co-defendant. As Judge Tate stated for the majority in United States v. Sheikh:
The taking of an adversarial stance on the part of counsel for co-defendants may generate trial conditions so prejudicial to the co-defendant under multiple attack [i.e., by the government and his co-defendant’s lawyer] as to deny him a fair trial.
654 F.2d at 1066. We think those conditions existed in this case. The core of Ver-tucci’s defense, as pressed by counsel, was that Romanello and Mendez had robbed him. The two defense camps were antagonistic.
To be sure, there was a theoretical possibility that the jury might acquit all defendants in the belief that Vertucci was robbed but that his counsel identified the wrong culprits. However, that possibility also exists in cases where a defendant identifies his codefendant. In both situations, the jury must weigh conflicting evidence and always has the option of acquitting every defendant. The real question for a court in considering a severance motion is not how convincing a defendant’s evidence is, but whether the core of his defense directly implicates the co-defendant. We believe that the core of Vertucci’s defense directly accused Romanello and Mendez. Moreover, that accusation was substantiated when the government introduced Ver-tucci’s description of his assailants and argued that the description accurately matched Romanello and Mendez. See Trial Record, Vol. XV, 89. As a practical matter, the arguments by counsellor Burge as well as the government identified Romanello and Mendez as Vertucci’s alleged assailants. We hold that the defense of Vertucci was mutually exclusive of and irreconcilable with the defenses of Romanello and Mendez.
To reach a different conclusion would put defendants like Romanello and Mendez in an impossible position. They would suffer compelling prejudice because of the accusation by a co-defendant’s lawyer, but their hope for severance would be dashed because their co-defendant refused to testify.
C. Prejudice to Romanello and Mendez
The prejudice to Romanello and Mendez was clear in the present case. As we have-seen, they faced an extra prosecutor in the guise of Vertucci’s counsel. See United States v. Sheikh, supra, 654 F.2d at 1066; cf. United States v. Johnson, supra, 478 F.2d at 1132-33. In cross-examination of government witnesses, attorney Burge showed that his client’s description matched Romanello and Mendez in details that the government had neglected to mention. See Trial Record, Vol. XII, 76-79,141. In addition, Burge constantly reminded the jury of the state charges against the co-defendants. Even the government objected to this testimony. Id. at 80-81. Finally, Vertucci’s defense depicted Romanello and Mendez as violent thugs who threatened to kill him if he testified. The totality of these accusations was-truly prejudicial. Romanello and Mendez did not receive a fair trial.
D. Prejudice to Vertucci
Whether Vertucci suffered sufficient prejudice to deserve a new trial is a more complicated issue. Since Romanello and Mendez did not base their defenses on a direct accusation of Vertucci, he is superficially different from the typical co-defendant receiving a new trial for failure to sever. Cf. United States v. Crawford, supra, 581 F.2d at 492 (each defendant accusr ing the other). Moreover, although United States v. Johnson, supra, seems at first to bear a resemblance to our case, it too is not on point. The formal similarity is that defendant Smith (like Vertucci) incriminated Johnson without having Johnson base his defense on Smith’s guilt. The distinction, however, is that Johnson (unlike Romanello and Mendez) did not attack Smith at all. In addition, Smith did not appeal the denial of severance. 478 F.2d at 1131.
Therefore we are faced with a question of first impression: whether Vertucci may deserve a new trial if the core of his defense is his co-defendants’ guilt, but the core of their defense does not directly accuse him. We hold that under the circumstances of this case, Vertucci does deserve a new trial.
The prejudice to Vertucci arising from the joint trial was compelling. Although the core of Romanello’s and Mendez’ defense was not Vertucci’s guilt, they did have to disprove his defense. They chose to attack the credibility of his statement to the police. They painted him as an abettor of gold smugglers who fabricated the robbery story in order to shift suspicion from themselves to Romanello and Mendez, the innocent couriers.
The attorney for Romanello (Mr. Borg) cross-examined Agent Hensely about Ver-tucci’s statement and elicited testimony that the robbery defense was suspicious from the start. Trial Record, Vol. XHI, 55-59. Then, in closing argument, Borg declared that “Vertucci was not robbed.” Id., Vol. XV, 187. The discrepancies between the actual appearance of his co-defendants and his description of the “supposed gunmen” proved that he had been told by smugglers to give the description of Romanello and Mendez. Id. at 286-87.
The attorney for Mendez (Mr. Clark) also argued that Vertucci had been coached to give a fabricated story. Vertucci had given a flawed description of his co-defendants’ “getaway car;” therefore, he could not have seen it himself; he must have been primed. Id. at 171-72. In addition, he could not have been handcuffed to the light pole as long as he claimed, because he had been yelling from the pole and would have been discovered earlier. Id. at 172.. Clark concluded that the smugglers had taken Vertucci to the pole late at night and directed him to say that the gold was stolen. Thus, customs officials would be put off the trail. Id. at 174. Vertucci’s involvement with a smuggling operation would also explain his failure to fill out certain customs documents: “[I]f he smuggles, you want to get it through, that’s it; that’s all.” Id. at 175.
In attacking the truth of Vertucci’s defense, attorneys Borg and Clark aided the prosecution. They substantiated the government’s contention that Vertucci had never been robbed, but had been handcuffed to the pole by colleagues. Moreover, they presented the jury with a basic conflict: either Vertucci’s defense was untrue or theirs was. In other words, either Vertucci was guilty or Romanello and Mendez were guilty. In the typical case of antagonistic accusations, “a substantial possibility exists that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Berkowitz, supra, 662 F.2d at 1134. The same problem arose in the present case. The conflict between the two defense camps created a substantial possibility the jury would infer that neither defense was true.
This was especially the case where the very antagonism between the defendants fit neatly into the government’s conspiracy theory. Vertucci had stated that he was robbed in order to further the conspiracy; and he had given an accurate description of his “assailants” in order to avoid contradicting himself during later questioning. Naturally, when he came to trial, he had to press the robbery as his only defense. Equally naturally, when Romanello and Mendez-were tried, they had to deny the robbery and show that Vertucci was lying. Given the accuracy of his description, they could not just claim that someone else had robbed him. The conspiracy plan itself produced and explained the antagonism between the defenses. The government could not lose when each defendant attacked the other. The attacks merely weakened each defense and underscored the strength of the government’s theory.
Thus, in the circumstances of this case, Vertucci suffered the very prejudice that the severance rules are designed to rectify. Although the coré of his co-defendants’ defense was not his own guilt, they nevertheless had to undermine Vertucci’s defense to establish their own innocence. We hold that a defendant like Vertucci deserves a new, severed trial when:
1. the core of his defense is the guilt of his co-defendant;
2. to disprove his defense would establish his guilt;
3. his defense and the defense of his co-defendant are irreconcilable and mutually exclusive;
4. the co-defendant actively attacks his defense at trial; and
5. he sufferes compelling prejudice as a result.
Such was the case here. A fair trial was impossible under the circumstances.
“[Whether or not] the evidence of each defendant’s guilt was strong, this joint trial was intrinsically prejudicial.” United States v. Crawford, supra, 581 F.2d at 492. On the other hand, “[b]ecause the evidence was uncomplicated and only two [defense camps] were involved, the inconvenience and expense of separate trials would not have been great.” Id.; see also United States v. Johnson, supra, 478 F.2d at 1134. The trial court abused its discretion in failing to grant a severance. The convictions of all three defendants must be reversed.
IV. CONCLUSION
Conspiracy trials, with their world-girdling potential, are given more extensive thrust by the admission of hearsay testimony, the use of conspiratorial acts to prove substantive offenses, and the joint trial of defendants. These pressures alone threaten to undermine the fair consideration of individual conspiracy defendants. However, the dangers inherent in joint trials become intolerable when the co-defendants become gladiators, ripping each other’s defenses apart. In their antagonism, each lawyer becomes the government’s champion against the co-defendant, and the resulting struggle leaves both defendants vulnerable to the insinuation that a conspiracy explains the conflict. We find that Vertucci, Roma-nello and Mendez did not receive a fair trial under these conditions. Vertucci should have been tried separately from the other two. Romanello and Mendez may still be tried together.
We REVERSE all convictions and REMAND for further proceedings in accordance with this opinion.
. Dante, The Inferno, Canto XXV, Circle 8, Bolgia 7, lines 46-48, 58-60 (J. Ciardi, transl.).
. Vertucci also alleged that Romanello and Mendez would exculpate him if he were tried separately. The trial court did not grant a severance, stating that Vertucci had failed in his burden of specifying: (1) a bona fide need for the testimony, (2) the likelihood of such testimony, (3) the substance of such testimony, and (4) the exculpatory nature and effect of such testimony. See United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.1980).
. Vertucci argues on appeal that the trial court erred in admitting the statements of two.witnesses (Longhin and Farneda) and in refusing to give a requested jury instruction on the law concerning property held “in bond” in Customs.
Romanello and Mendez claim that the denial of severance coupled with Vertucci’s decision not to take the witness stand denied them their Sixth Amendment rights to confront a witness against them. They also argue that certain testimony concerning Farneda should not have been excluded; and they join Vertucci in attacking the admission of Longhin’s statements.
Finally, each defendant argues that the evidence was not sufficient to support a verdict against him.
. We do hold, however, that the evidence was sufficient to support the verdicts against all three defendants.
. The conviction of Smith was not reversible, because he was “not highly prejudiced in the presentation of his defense by Johnson’s presence at trial.” Id. at 1132. Moreover, Smith had not appealed on this ground. Id. at 1131.
. Our case is distinguishable from others in which severance has been denied. In Berkow-itz, each defendant admitted his own participation in the crime but described his co-defendant as more deeply involved. 662 F.2d at 1132-33. In Sheikh, both defendants denied knowledge that heroin was contained in a packing crate, but neither indicated that he believed the co-defendant to have that knowledge.
In contrast to both Berkowitz, and Sheikh, Vertucci’s claim of innocence was premised on his co-defendants’ guilt; and the co-defendants in turn attempted to disprove his defense.
Our case is likewise distinguishable from United States v. Swanson, 572 F.2d 523, 529 (5th Cir.1978) (defense of lack of intent not irreconcilable with co-defendant’s claim of non-involvement); United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980) (entrapment defense did not necessarily prove that co-defendant guilty); and United States v. Marable, 574 F.2d 224 (5th Cir.1978) (claim of non-involvement not irreconcilably antagonistic to defendant who offered no defense).
. The government also argues that the three defendants could not be antagonistic, because Romanello and Mendez had offered to exculpate Vertucci if he were tried separately. Brief of Appellee at 42-43. This argument appears somewhat specious, however, since Romanello and Mendez never actually exculpated Vertucci before the jury after their motion for severance was denied.
. The government argues that references to the state indictments did not prejudice Romanello and Mendez, because other trial testimony proved that the indictments had been dismissed. Brief of Appellee at 42. The prejudice can remain, however, as evidenced by eviden-tiary rules preventing the jury from learning of certain indictments that did not lead to convictions. See, e.g., Fed.R.Evid. 404(b), 608(b), 609.
More important, the government’s argument does not contradict our basic point that William Burge identified Romanello and Mendez as the men who attacked Vertucci.
. Throughout criminal jurisprudence, we identify clients with their lawyers. There is no reason to treat them any differently in the context of Rule 14.
. For example, in United States v. Crawford, supra, 581 F.2d at 490-491, the jury was faced with conflicting testimony about the possession of a shotgun. Although the jury might have concluded that neither co-defendant possessed the gun, this court held that their defenses were antagonistic. Id. at 492.
. Q [by Mr. Borg]: Now when you heard this description at an area that you knew had people coming and going, you were suspicious of that story, weren’t you?
A: Yes, sir.
Q: As a matter of fact, even on December 8th, you thought Vertucci was a suspect?
A: He was a suspect, yes.
Q: And you had doubts about his story even then, didn’t you?
A: Yes, sir.
Q: Because you didn’t believe it, did you?
A: I had doubts.
Mr. Borg: I have nothing else.
The Court: All right.
Id. at 55, 58-59.
. Borg argued:
Oh, we have heard about the description of the supposed gunmen that came to Vertucci and said-, if you identify me harm will come to you.
Well, do you know the description he gave?
.. . [T]hat is not the description of a person that Vertucci claims he actually saw, but had to be somebody that was told about it. [sic] He was told.
Id.
. As Clark pointed out:
The identification of the car was all botched up. The car was dark outside with light blue inside; he had it just the opposite. Someone must have told him that, whoever he may have been working with.
Id.
. Clark theorized how Vertucci had become involved:
You remember Mr. Hensely said, Customs is supposed to check you out on the phone?
Oh, got a problem; • what are we going to do? Couple of characters we don’t even know are driving crazy to New York with our gold. The agent wants to see it in the morning. Mr. Vertucci, we got an assignment for you. We are going to take you out, put you at a post and you are going to say it was stolen.
Id.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_appstate
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Nell ASPERO, formerly Nell Aspero Rosenberry, Plaintiff-Appellant, v. SHEARSON AMERICAN EXPRESS, INC., Defendant-Appellee.
No. 84-6059.
United States Court of Appeals, Sixth Circuit.
Submitted March 26, 1985.
Decided July 17, 1985.
Thomas F. Johnston, Thomas F. Preston, Armstrong, Allen, Braden, Goodman, McBride and Prewitt, Memphis, Tenn., for plaintiff-appellant.
G. Patrick Arnoult and Russell L. Cherry, Memphis, Tenn., for defendant-appellee.
Before ENGEL and JONES, Circuit Judges, and HULL, District Judge.
Honorable Thomas G. Hull, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by designation.
NATHANIEL R. JONES, Circuit Judge.
Nell Aspero appeals from the district court’s order compelling arbitration in this tort suit against Shearson American Express, the brokerage firm with which she was formerly employed. This appeal requires interpretation of New York Stock Exchange Rule 347, which provides for settlement by arbitration of “[a]ny controversy ... arising out of the employment or termination of employment” of a registered broker. We hold that the present controversy arose out of Aspero’s employment and termination of employment as a registered broker and, therefore, we affirm the district court.
Aspero joined Shearson’s Memphis office as a broker in April, 1982 and was promoted to Second Vice-President of Investments in June, 1982. Her employment contract states:
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the Rules, Constitutions, or ByLaws of the organizations with which I register____
One organization with which Aspero registered was the New York Stock Exchange (NYSE), whose board has promulgated Rule 347:
Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration____
(emphasis added).
Shearson disputes the following allegations, on which there have been no findings of fact, but maintains that all of the alleged facts arise out of Aspero’s employment and termination. Aspero contends that the actionable events were tortious acts which Shearson committed subsequent to her resignation and which did not arise out of her employment with Shearson.
In August 1982, Aspero opened a discretionary trading account on behalf of Timothy Heath. In December 1982, after Heath apparently complained about substantial losses in the account, its management was taken over by James Siegfried, the Vice-President and Resident Manager of Shear-son’s Memphis office. On March 2, 1983, Siegfried demanded that Aspero sign a $20,000 promissory note representing the losses in the Heath account to that date. Siegfried also asked for Aspero’s resignation. Aspero alleges that Siegfried threatened to fire her for making unauthorized trades in the Heath account. She alleges that she then requested meetings with Heath and with upper level Shearson management, and sought arbitration. On March 4, 1983, Aspero submitted her resignation. According to the complaint, Siegfried both promised to treat the departure as a resignation rather than as a termination and promised to give Aspero a good reference for future employment. Thereafter, Siegfried allegedly told several potential employers that Aspero was terminated for unauthorized trading rules violations. Siegfried also allegedly submitted false Uniform Termination Notice for Securities Industry Registration (“U-5”) forms to various exchanges and state offices stating that Aspero was discharged due to compliance problems.
On these alleged facts, Aspero’s claims for defamation, invasion of privacy, and intentional infliction of emotional distress by her former employer Shearson arise out of her employment with Shearson and termination of her employment with Shearson, so that the district court properly applied NYSE Rule 347 to require arbitration. Our analysis begins by recognizing that any duty to arbitrate is founded on a contractual obligation. Thus, a party may not be compelled to arbitrate unless the party has agreed to submit the dispute to arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). A court must determine the intent of the parties as evidenced by the contract language. Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1165 (8th Cir.1984). Yet, federal policy favors arbitration. See 9 U.S.C. §§ 1-14 (1982). Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). “[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id.
Aspero first claims that this action does not arise out of her employment or termination because the acts by Shearson of which she complains occurred after her contractual relationship with Shearson had been severed. Although it is created by contract, the duty to arbitrate does not necessarily end when the contract is terminated. In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Supreme Court concluded that the parties’ obligations under an arbitration clause that was part of a collective bargaining agreement “survived contract termination when the dispute was over an obligation arguably created by the expired agreement.” Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionary Workers Union, 430 U.S. 243, 252, 97 S.Ct. 1067, 1072, 51 L.Ed.2d 300 (1977) (discussing John Wiley) (emphasis added). In Nolde, the Supreme Court determined that an employer had a continuing duty to arbitrate a severance-pay dispute.
[I]n the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract.
Nolde, 430 U.S. at 253, 97 S.Ct. at 1073. In a dispute concerning the scope of NYSE Rule 347, the arbitration clause presently under scrutiny, this Court considered the suit of two former brokers against their former employer for amounts allegedly due under a profit-sharing plan. Although the plaintiffs alleged that their profit-sharing units became payable upon severance of employment, the Court found that “the controversy clearly arises out of the ‘employment or termination of employment’ of plaintiffs,” and required the employer to arbitrate. Stokes v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 523 F.2d 433, 434, 437 (6th Cir.1975). The present controversy may arise out of Aspero’s employment or termination of employment although Shearson’s challenged acts occurred after its employment contract with Aspero had ended.
Aspero maintains further, however, that the time when the underlying contract has been terminated continues to be an important factor when a suit does not seek to enforce contractual rights created by the agreement. In Coudert v. Paine Webber Jackson & Curtis, 705 F.2d 78 (2d Cir.1983), a split panel of the Second Circuit held that, under NYSE Rule 347, “only grievances based on conditions arising ‘during the term of the agreement to arbitrate’ are arbitrable after the term has ended.” Id. at 81 (quoting Proctor & Gamble Independent Union v. Proctor & Gamble Manufacturing Co., 312 F.2d 181, 186 (2d Cir.1962)). Coudert involved a tort suit by a broker who claimed that after she voluntarily resigned her former employer libeled her to other employees and her clients, and falsely filed termination forms with several exchanges which stated that she was fired for cause. Id. at 80. The Second Circuit held that the plaintiff was not required to arbitrate her claim because “the dispute itself does not pertain to employment or termination of employment; the tortious acts are all claimed to have occurred after such termination.” Id. at 82. If this Court were to follow Coudert, Aspero’s claim would not be subject to arbitration; she advances nearly identical tort actions based on similar behavior by her former employer, and her employment was governed by the same NYSE rule.
The Eighth Circuit, however, has severely criticized Coudert’s failure to understand that “the plain language of Rule 347 does not limit arbitration to contractual disputes.” Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1167 (8th Cir.1984). The Eighth Circuit in Morgan looked neither to the timing of the action nor to the legal basis of the action as tort or contract, but instead evaluated whether the lawsuit involved “significant aspects of the employment relationship, including but not limited to explicit contractual terms.” Id. at 1167. When the employee’s role as a broker or the brokerage house’s role as an employer of brokers is the “specific source” from which a controversy arises, even a controversy that is not based upon contractual rights or duties will be subject to arbitration under Rule 347.
Morgan was a broker who alleged that his former superiors at Smith Barney “scrounged up” complaints from his former customers and communicated them to several securities enforcement agencies. He also alleged that Smith Barney personnel deliberately and falsely told customers that Morgan’s broker’s license had been suspended. The court found that these claims implicated Morgan’s brokerage customers, his status as a broker, his handling of customer accounts, and that in general the findings necessary to resolve these issues bore a “significant relationship” with “his employment at Smith Barney.” Id. at 1167. Therefore, although the challenged acts occurred after Morgan left Smith Barney, the related controversy arose out of his employment as a broker and was subject to arbitration under NYSE Rule 347. By contrast, the court found that Morgan’s allegations that Smith Barney personnel told his former coworkers that he had stolen items from their desks at night did not arise out of his employment or termination of employment as a broker. The court stated:
No customers or securities agencies are implicated, and no significant issue of Morgan’s job performance qua broker is implicated.
Id. at 1168.
Morgan is well-reasoned. We hold that when a party subject to NYSE Rule 347 seeks to compel arbitration of a claim which is brought after the termination of the employment relationship, and which is not based upon a contractual right or duty created by the employment agreement (for example by a severance pay clause or a non-solicitation agreement, which are both intended to operate following termination), the proper question is whether resolution of the claim depends upon evaluation of a party’s performance either as a broker or as an employer of brokers during the time of the contractual relationship.
When this test is applied to the underlying facts of Aspero’s claims, it is clear that her claims arise out of her employment and termination as a broker and are properly subject to arbitration. Each claim depends upon a determination of Aspero’s performance as a broker while employed by Shearson. The brokerage house’s claim that Aspero engaged in unauthorized trading goes to the core of her role as a broker. If Shearson proves its case, Aspero was properly terminated. The factual essence of this lawsuit arises out of both Aspero’s employment by Shearson and her alleged termination by Shearson. That Shearson’s actions occurred following Aspero’s allegedly voluntary resignation is relevant but in no way dispositive of this case. Whether she was fired or freely resigned is a fact yet to be determined.
For the foregoing reasons, the district court’s order compelling arbitration is Affirmed.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
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.
Eloise BEARD, as Administratrix for the Estate of Jeff Beard, the Deceased, Plaintiff-Appellant, v. Stanley B. ROBINSON, Roy Martin Mitchell, and Certain Officers of the Federal Bureau of Investigation, whose true identities are unknown to the plaintiff, Defendants-Appellees.
No. 76-1708.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 8, 1977.
Decided Sept. 28, 1977.
Harold C. Hirshman, Chicago, Ill., for plaintiff-appellant.
Thomas P. Sullivan, U. S. Atty., Alexandra M. Kwoka, Asst. U. S. Atty., Ronald S. Barliant, Chicago, Ill, for defendants-appellees.
Before BAUER and WOOD, Circuit Judges, and SHARP, District Judge.
The Hon. Allen Sharp, United States District Court for the Northern District of Indiana, is sitting by designation.
BAUER, Circuit Judge.
In this appeal we must determine whether damage claims brought against a state officer under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and against federal officers under the Fourth Amendment survive the death of the injured party, and whether the claims are time-barred. The district court held that some of the claims did not survive the death of the injured party and that the other claims were time-barred. We reverse.
I.
Plaintiff Eloise Beard brought this action in the district court as administratrix of the Estate of Jeff Beard, who allegedly was murdered by the defendants. Plaintiff sued Stanley Robinson, a Chicago policeman at the time of the events underlying the suit, under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and the other defendants, Federal Bureau of Investigation personnel, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint alleges that the defendants conspired to deprive, and actually deprived, Jeff Beard of his constitutional rights in the course of an FBI investigation into corruption among members of the Chicago Police Department. As part of the investigation, the FBI purportedly employed defendant William O’Neal to covertly gather information about the Department by engaging in criminal acts with Robinson and others. Defendant Roy Mitchell served as O’Neal’s FBI contact. With the assistance of Mitchell and other unknown FBI agents, Robinson and O’Neal allegedly planned and committed Jeff Beard’s murder on or about May 17, 1972, when they seized Beard in Chicago under the pretext that they had a warrant for his arrest, searched and handcuffed him, and drove him to Indiana, where Robinson clubbed and shot him to death. No warrant for Beard’s arrest ever existed. The complaint, filed on September 27, 1975, seeks both compensatory and punitive damages from the defendants for violating Beard’s rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution.
Upon motion of the defendants, the district court dismissed the complaint. The court reasoned that our decision in Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974), mandates that federal civil rights actions survive for the benefit of an injured party’s estate only to the extent that the applicable state law permits such claims to survive. Looking to the Illinois Survival Act, Ill.Rev. Stat. ch. 3, § 339, the court concluded that the instant claims survived only insofar as they sought damages for the physical injuries Beard suffered. Relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), the court then dismissed the action altogether because the physical injury claims were barred by Illinois’s two-year statute of limitations. Ill.Rev.Stat. ch. 83, § 15.
II.
Survival
We turn first to the question of whether the claims alleged survive Beard’s death. Plaintiff presents several theories for the survival of her action. She argues that the action as a whole survives (1) under the Illinois Survival Act, both as an action to recover damages for “injuries] to the person” and as an action “against officers for misfeasance, malfeasance, or non-feasance”; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives “against officers for misfeasance, malfeasance or non-feasance” and thus need not consider plaintiff’s other arguments.
Neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961). At least one court has found it necessary to fashion an independent federal common law rule when state law, which would have defeated the survival of the federal claim, was deemed inconsistent with the strong federal policy of insuring the survival of federal remedies for violations of federal civil rights. Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977).
Because we believe the borrowing of state law in the circumstances of this case is completely consistent with the federal policies underlying Bivens and the Civil Rights Acts, we have no occasion to fashion an independent federal common law rule here. With respect to plaintiff’s civil rights claims, 42 U.S.C. § 1988 authorizes our reference to state law insofar as it is “not inconsistent with the Constitution and laws of the United States.” With respect to plaintiff’s Bivens claim, the adoption of state law likewise seems warranted since it is consistent with the federal policies underlying Bivens.
The applicable Illinois law that we adopt as the governing federal rule is found in the Illinois Survival Act, Ill.Rev.Stat. ch. 3, § 339, which provides:
“In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors’, approved January 31, 1934, as amended.”
In view of the Illinois Supreme Court’s declaration that this act is “remedial in its nature and is to be liberally construed,” McDaniel v. Bullard, 34 Ill.2d 487, 491, 216 N.E.2d 140, 143 (1966), we believe the district court erred in relying on Kent v. Muscarello, 9 Ill.App.3d 738, 293 N.E.2d 6 (2d Dist. 1973), for the proposition that this action does not survive as an action “against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies.” To be sure, Kent held that a malicious prosecution action against two Barrington, Illinois policemen did not survive the death of the injured party. Kents holding that the policemen were not “officers” for the purposes of the Illinois Survival Act, however, was based on the fact that the policemen were not deemed “officers” at common law, by statute or by municipal ordinance. For the latter proposition, Kent relied on Krawiec v. Industrial Commission, 372 Ill. 560, 564, 25 N.E.2d 27 (1939), which held that policemen of the City of Chicago Heights, Illinois were not made officers of the City by municipal ordinance and thus were entitled to recover under the Illinois Workmen’s Compensation Act. However, Krawiec itself distinguished City of Chicago v. Industrial Commission, 291 Ill. 23, 125 N.E. 705 (1920), which held that City of Chicago policemen were made officers by city ordinances and thus were not entitled to workmen’s compensation benefits. Since City of Chicago has not been overruled by the Illinois Supreme Court and thus still stands for the proposition that Chicago policemen are officers of the v City, we feel compelled to follow City of - Chicago and hold that Chicago policemen are also “officers” for purposes of the Illinois Survival Act. Accordingly, we hold that the instant action brought against defendant Robinson, sued in his capacity as a Chicago policeman, survives Beard’s death. See Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 129 (N.D.Ill.1972).
Moreover, inasmuch as FBI agents are deemed federal officers under federal law, see Lowenstein v. Rooney, 401 F.Supp. 952, 960-62 (E.D.N.Y.1975), we believe that plaintiff’s Bivens action also can be characterized as an action “against officers” within the meaning of the Illinois Survival Act. Accordingly, adopting as federal law the Illinois Survival Act, we hold that plaintiff’s Bivens action against the federal defendants survives as well.
III.
Statute of Limitations
Neither the Civil Rights Acts nor Bivens fixes a time limit within which suits brought thereunder must be commenced. As to plaintiff’s civil rights claims, however, precedents establish that the applicable limitations period is that which a court of the State where the federal court sits would apply had the action been brought there. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); see 42 U.S.C. § 1988. Hence, we look to Illinois law to determine the statute of limitations applicable to defendant Robinson.
As to plaintiff’s Bivens claims, the parties to this action agree that the applicable limitations period is that which would govern an analogous action brought in a court of the forum state. Regan v. Sullivan, 417 F.Supp. 399 (E.D.N.Y.1976); Lombard v. Board of Education of the City of New York, 407 F.Supp. 1166, 1171 (E.D.N.Y.1976), rev’d on other grounds, 502 F.2d 631 (2d Cir. 1974); Ervin v. Lanier, 404 F.Supp. 15, 20 (E.D.N.Y.1975); see Fine v. City of New York, 529 F.2d 70, 76-77 (2d Cir. 1975). Accordingly, we will also look to Illinois law to determine the statute of limitations applicable to the federal defendants. We note, however, that our borrowing of state limitations periods to determine the timeliness of both these claims is conditioned on the state limitations period being consistent with the policies underlying the federal rights of action. Occidental Life Insurance Co. v. EEOC, - U.S. -, -, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); see 42 U.S.C. § 1988.
Although the parties agree that we should look to Illinois law to determine the applicable statute of limitations, they disagree as to which Illinois statute of limitations should be applied. The plaintiff, relying on Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958), argues that Illinois’s five-year statute of limitations governing “all civil actions not otherwise provided for” by the Illinois Limitations Act, Ill.Rev.Stat. ch. 83, § 16, governs both her claims. Plaintiff notes that under Illinois law, this limitations period applies to causes of action created by statute, Blakeslee’s Storage Warehouses v. City of Chicago, 369 Ill. 480, 17 N.E.2d 1, 4 (1938); Parmelee v. Price, 208 Ill. 544, 70 N.E. 725 (1904); Gibralter Ins. Co. v. Varkalis, 115 Ill.App.2d 130, 253 N.E.2d 605, 608-09 (1969), aff’d 46 Ill.2d 481, 263 N.E.2d 823 (1970); Lyons v. Morgan County, 313 Ill.App. 296, 40 N.E.2d 103 (1942), and that the action created by the Civil Rights Acts is such a cause of action. The same statute of limitations should govern the claims brought against the federal officers, says plaintiff, because the Bivens action is analogous to actions brought under the Civil Rights Acts, and it would be incongruous to apply a different limitations period to such .actions merely because federal rather than state officers are being sued.
The defendants, relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), argue that Illinois’s two-year statute of limitations for “injuries] to the person, false imprisonment, and abduction,” Ill.Rev.Stat. ch. 83, § 15, should be applied to plaintiff’s civil rights claims because the actions governed by this statute are the substantive offenses that most closely resemble the misconduct in which the defendants here are alleged to have engaged. With respect to the Bivens action, defendants contend that the two-year limitations period should also govern because (1) Bivens actions are not based upon a statutory liability like civil rights actions, but are actions to redress “constitutional torts,” and (2) the two-year statute of limitations governing the instant civil rights claims should be applied to the analogous Bivens claims as well.
We turn first to the question of which state statute of limitations period applies to plaintiff’s statutory civil rights claims and confess at the outset that the state of the law in this Circuit regarding the limitations period applicable to claims brought under federal civil rights acts is less than lucid.
In Wakat v. Harlib, supra, the plaintiff sued several Chicago police officers who arrested him without a warrant or probable cause and detained him six days without charging him with a crime, without allowing him to see an attorney, and without allowing him to appear before a judge for a bail hearing. The officers also coerced him into signing a confession later used in court to convict him, searched his home and workplace, and seized his personal property without a warrant or probable cause. The plaintiff’s action was based on 42 U.S.C. §§ 1983 and 1985, and we held his claims were governed by Illinois’s five-year statute of limitations covering causes of action created by statute. Subsequently, Wakat’s holding was followed or cited without disapproval in at least the following cases: Inada v. Sullivan, 523 F.2d 485 (7th Cir. 1975); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971); Weber v. Consumers Digest, Inc., 440 F.2d 729, 731 (7th Cir. 1971); Baker v. F. & F. Investment, 420 F.2d 1191, 1197-98 (7th Cir.), cert. denied sub nom. Universal Builder’s Inc. v. Clark, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970); Amen v. Crimmins, 379 F.Supp. 777, 779 (N.D.Ill.1974); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128 (N.D.Ill.1972).
In Jones v. Jones, supra, however, we took a different tack toward the problem of ascertaining the applicable limitations period for federal civil rights claims. The Jones plaintiff had brought suit under 42 U.S.C. § 1983 against his ex-wife, members of her family, her lawyers, and judges of the Illinois Circuit and Appellate Courts for combining to deprive him of his constitutional rights in a series of court actions involving his ex-wife’s claims for alimony and child support that ultimately resulted in his serving a jail term. After determining that the judges were immune from suit and that the lawyers could not be sued under the Civil Rights Acts because they were not acting under color of state law, we looked to “the substance of the alleged injury” to determine the applicable limitations period and held that the two-year statute of limitations contained in Ill.Rev.Stat. ch. 83, § 15 governed the action against the remaining defendants because the damages sought resulted from an injury to the plaintiff’s person, false imprisonment, and malicious prosecution. We attempted to distinguish Wakat on the ground that the earlier case involved a conspiracy claim brought under 42 U.S.C. § 1985, rather than a Section 1983 claim. Subsequently, Jones was cited with approval in Baker v. F. & F. Investment Co., 489 F.2d 829, 837 (7th Cir. 1973), and followed by at least three district courts in the Circuit. Cage v. Bitoy, 406 F.Supp. 1220 (N.D.Ill.1976); Klein v. Springborn, 327 F.Supp. 1289, 1290 (N.D.Ill. 1971); Skrapits v. Skala, 314 F.Supp. 510 (N.D.Ill.1970).
Upon reflection, it seems to us that Wakat and Jones cannot stand together, for underlying the inconsistent results reached therein are two inconsistent approaches to determining the applicable statute of limitations. The Wakat approach treats all claims founded on the Civil Rights Acts as governed by the five-year Illinois statute of limitations applicable to all statutory causes of action that do not contain their own limitations periods. Jones, on the other hand, looks beyond the fact that a statutory cause of action has been alleged and seeks to characterize the facts underlying plaintiff’s claim in terms of traditional common law torts for purposes of determining the applicable state statute of limitations. Faced with these two conflicting approaches that have generated inconsistent results within the Circuit, we now believe it is necessary to overrule Jones and adopt the Wakat rule as the law of the Circuit for the following reasons.
We believe our choice of the Wakat rule is compelled by the fundamental differences between a civil rights action and a common law tort. The Civil Rights Acts do not create “a body of general federal tort law.” Paul v. Davis, 424 U.S. 693, 701, 9S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). Rather, they
“creat[e] rights and impos[e] obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course givf rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability.” Smith v. Cre-mins, 308 F.2d 187, 190 (9th Cir. 1962) (footnote and citations omitted).
As Justice Harlan suggested with regard to the Civil Rights Acts,
“a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Monroe v. Pape, 365 U.S. 167, 194, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (concurring opinion).
By following the Wakat approach of applying a uniform statute of limitations, we avoid the often strained process of characterizing civil rights claims as common law torts, and the
“inconsistency and confusion [that] would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several different periods of limitation applicable to each state-created right were applied to the single federal cause of action.” Smith v. Cremins, supra at 190.
Moreover, we note that the Wakat approach of looking to a general state statute of limitations prevails in most of our sister circuits, while the Jones approach of looking to the underlying tort to determine the applicable state statute of limitations has «been followed consistently only by the ’Third Circuit.
We thus hold that the Illinois five-year statute of limitations applies to statutory claims brought under the Civil Rights Acts. Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), is hereby overruled.
Turning to the Bivens claims, we recognize plaintiffs argument for application of the same statute of limitations that we apply to civil rights claims is a compelling one. A contrary result could lead to the incongruous application of inconsistent limitations periods to different members of a single conspiracy, based solely on whether an officer alleged to have committed the constitutional violation was employed by the state or federal government. Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346-47 (2d Cir. 1972) (immunity of state and federal officers). On the other hand, since Bivens actions are not creatures of statute, the state law rationale used above for application of the five-year statute of limitations is not appropriate to Bivens claims.
With these considerations in mind, we look to the Illinois statutes of limitations that we might apply. Again we are faced with a choice between the two-year limitations periods for torts in Ill.Rev.Stat. ch. 83, § 15, and the five-year limitations period for “actions not otherwise provided for” in Ill.Rev.Stat. ch. 83, § 16. We can eliminate the first choice for the same reasons we refused to apply the Illinois statute of limitations for torts to the state defendant here. Like civil rights claims, Bivens claims for the deprivation of constitutional rights cannot be equated with state tort claims. Both the elements of the two types of claims and the underlying rights asserted are distinctly different. Regan v. Sullivan, 417 F.Supp. 399, 403 (E.D.N.Y.1976). The Supreme Court recognized these differences in Bivens itself:
“[A]s our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen.” 403 U.S. at 392, 91 S.Ct. at 2002.
“The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s guarantee against searches and seizures, may be inconsistent or even hostile.” 403 U.S. at 394, 91 S.Ct. at 2003.
The only other applicable statute of limitations is the five-year catch-all period of limitations we applied to the instant civil rights claims. For those claims, we held that the five-year period applied because they were based on a liability created by statute, for which Illinois courts apply the five-year limitations period. For Bivens -type claims, we think it inappropriate to apply the five-year statute of limitations on that basis, but apply that statute because no other Illinois statute of limitations can appropriately be applied. This conclusion is reinforced by the knowledge that an identical statute of limitations period will be applied to all the defendants in this action, thus avoiding the inconsistent result of applying different statutes of limitations to defendants who are charged with engaging in a single conspiracy.
In summary, we hold that this survivors action may be brought by the plaintiff and that her claims are not time-barred. Accordingly, the district court’s judgment is reversed, and the case is remanded for further proceedings.
REVERSED and REMANDED.
. Ill.Rev.Stat. ch. 3, § 339 provides:
“In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander or libel), actions to recover damages for an injury to real or personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors’, approved January 31, 1934, as amended.”
. 42 U.S.C. § 1988 provides in pertinent part:
“The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.”
. State survival statutes commonly have been adopted as a matter of federal law for application to other federal causes of action for which there is no federal rule regarding abatement or survival. E. g., Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955) (Jones Act); Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941) (admiralty tort); Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685 (1937) (Merchant Marine Act). See also the other cases cited in Brazier v. Cherry, supra, and Pritchard v. Smith, supra.
. Ill.Rev.Stat. ch. 83, § 16 provides:
“Except as provided in Section 2-725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11-13 of ‘the Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.”
. Ill.Rev.Stat. ch. 83, § 15 provides:
“Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.”
. Apart from the Jones Court’s failure to recognize that Wakat was based on 42 U.S.C. § 1983 as well as Section 1985 and thus could not be distinguished merely on that ground, Wakat’s reasoning could have been applied without strain to the Jones facts; the action brought by Jones under 42 U.S.C. § 1983 could just as well have been characterized as a statutory right of action governed by Illinois’s five-year statute of limitations. Likewise, the damages Wakat sought arose from injuries that could have been characterized as injuries to his person, false imprisonment, and abduction, all mentioned in Ill.Rev.Stat. ch. 83, § 15.
In view of our overruling Jones, the portions of this opinion relative to our holding have been circulated among all the judges of this Court in regular active service. No judge favored a rehearing en banc with respect to that holding. Judge Tone did not participate in the Court’s action.
. E. g., Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir. 1972). The Second and Ninth Circuits uniformly apply state limitations periods for statutory causes of action. E. g., Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973); Swan v. Bd. of Higher Education of the City of New York, 319 F.2d 56, 60 (2d Cir. 1963); Donovan v. Reinbold, 433 F.2d 738, 741-42 (9th Cir. 1970); Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). The Fourth Circuit, in cases arising out of Virginia, applies that State’s general limitations period for personal injuries rather than its shorter limitations period for intentional torts. That court reasons that a federal civil rights action is more serious than a common law tort and thus deserves a longer statute of limitations. Almond v. Kent, 459 F.2d 200, 203-04 (4th Cir. 1972), followed in Runyon v. McCrary, 427 U.S. 160, 179-82, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), and Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972). There is a split in authority in the Fifth Circuit. Some cases apply state limitations periods for statutory actions. White v. Padgett, 475 F.2d 79, 85 (5th Cir.), cert. denied, 414 U.S 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973); Franklin v. City of Marks, 439 F.2d 665 (5th Cir. 1971); Nevels v. Wilson, 423 F.2d 691 (5th Cir. 1970). Others apply the state statute of limitations that would govern a common law action that could be brought in a state court upon the same facts. Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967). The most recent cases in the Sixth Circuit have applied state limitations periods for statutory actions. Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir. 1975); Garner v. Stephens, 460 F.2d 1144 (6th Cir. 1972). Contra, Madison v. Wood, 410 F.2d 564 (6th Cir. 1969); Bufalino v. Michigan Bell Tel. Co., 404 F.2d 1023, 1028 (6th Cir. 1968); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968). In Reed v. Hutto, 486 F.2d 534 (8th Cir. 1973), the Eighth Circuit recognized the existence of a clear split in the circuit between the two methods of choosing an appropriate statute of limitations. Since Reed, the court has avoided the problem by applying state statutes of limitations, other than those for common law torts or for statutory actions, that “clearly apply” to civil rights actions. Chambers v. Omaha Public School District, 536 F.2d 222, 228 (8th Cir. 1976) (Nebraska statute of limitations applying to “actions upon a liability created by federal statute ... for which ... no period of limitations is provided in such statute.” Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975) (Missouri statute of limitations applying to actions against officers for liabilities incurred by official acts). The Tenth Circuit has applied general state statutes of limitations for “injuries to the rights of another not arising from a contract and not otherwise enumerated.” Crosswhite v. Brown, 424 F.2d 495 (10th Cir. 1970); Wilson v. Hinman, 172 F.2d 914 (10th Cir.), cert. denied, 336 U.S. 970, 69 S.Ct. 933, 93 L.Ed. 1121 (1949).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appel1_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL COMMUNICATION SYSTEMS, INC., A Michigan Corporation; Victor E. Shapley, Plaintiffs-Appellants, v. MICHIGAN PUBLIC SERVICE COMMISSION, a Commission of the State of Michigan; Eric J. Schneidewind; Daniel Demlow; Robert Fischer and Gerald Irwin, Defendants-Appellees.
No. 85-1159.
United States Court of Appeals, Sixth Circuit.
Argued March 3, 1986.
Decided April 25, 1986.
Leo H. Friedman, Frank J. Kelley, Don L. Keskey, Lead Counsel, Lansing, Mich., Louis J. Caruso, Robert P. Brown (argued), for defendants-appellees.
Brian M. Kennedy, Bay City, Mich., Man-del I. Allweil (argued), Bay City, Mich., for plaintiffs-appellants.
Before MERRITT and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.
MERRITT, Circuit Judge.
Plaintiffs-appellants Victor E. Shapley and National Communications Systems, Inc. appeal the District Court’s order dismissing their civil rights action. We affirm.
I.
In March 1975, plaintiff Shapley formed plaintiff National Communications Systems, Inc. as a Michigan corporation. Shapley entered into an agreement with the owner of Mesick and Northern Telephone companies, two small telephone companies operating in Michigan, under which National acquired as a holding company all the stock of the two telephone companies. The telephone companies needed a substantial financial investment in their facilities, so National undertook certain capital improvements.
On September 30, 1976, Northern Telephone Company filed a request for the Michigan Public Service Commission’s approval of the borrowing of funds to finance the improvements. On February 2, 1977, Northern Telephone Company filed a second petition with the Michigan Public Service Commission, this time seeking approval of a $47,000 annual rate increase.
Plaintiffs allege that thereafter, Northern Telephone Company and Shapley were subjected to maliciously motivated abuse of the regulatory process by defendants-ap-pellees, members of the Michigan Public Service Commission and the commission itself, with the intended result of destroying plaintiffs’ property and business. According to plaintiffs’ complaint, defendants intentionally delayed action on plaintiffs’ petitions for unreasonable lengths of time without regulatory justification. Additionally, defendants allegedly asked the commission’s auditor to falsify his calculations in order to defeat plaintiffs’ request for a rate increase. When the auditor refused, defendants fired him. Defendants then appointed an independent appraiser to determine the value of plaintiff’s property and facilities, a value used as a factor in the rate setting process. Defendants allegedly harassed the appraiser and constrained him to substantially understate the value. Moreover, plaintiffs allege, defendants intentionally caused the disruption of telephone service to plaintiffs’ customers by physically destroying plaintiffs’ lines and other equipment and then aggressively solicited public criticism and complaints from plaintiffs’ customers about plaintiffs’ telephone service. Finally, plaintiffs allege that defendants intentionally caused plaintiffs’ costs and expenses incurred in the regulatory proceeding to be unjustifiably increased to more than $200,000 for the purpose of destroying plaintiffs’ ability to provide telephone service to their customers.
II.
On May 4, 1984, plaintiffs filed this action under 42 U.S.C. § 1983, alleging that defendants had, under color of state law, deprived plaintiffs of their property without due process of law, and under section 1985(3), alleging that defendants had conspired to deprive plaintiffs of equal protection and due process. The named defendants in the suit are the Michigan Public Service Commission and four present and past members of the commission. By this suit, plaintiffs sought $5,000,000 in damages. Defendants moved to dismiss the complaint under rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted. After a hearing on the motion, the District Court granted the motion in part.
The District Court ruled that the eleventh amendment barred the plaintiffs’ action against the Michigan Public Service Commission and against the commissioners in their official capacities. The District Court judge further ruled that if plaintiffs’ action against the commissioners attempted to reach them in their individual capacities, the due process claim should be dismissed as required by Parratt v. Taylor, 451 U.S. 527,101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Lastly, the judge determined, sua sponte, that he should abstain from exercising jurisdiction over this action and dismissed any remaining claims under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and Fair Assessment in Real Estate Association v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981).
III.
At oral argument plaintiffs’ counsel admitted that the District Court properly dismissed the claims against the Michigan Public Service Commission and any claims against the commissioners in their official capacity. Plaintiffs do not appeal the District Court’s order in this respect, and we therefore state no opinion on the eleventh amendment issue.
IV.
Plaintiffs’ appeal centers mainly around the District Court’s dismissal of their individual-capacity § 1983 claim against the commissioners alleging the deprivation of a property interest without procedural due process. Plaintiffs do not allege a taking under the fifth amendment, a seizure of property under the fourth amendment, or any other claim incorporated by the fourteenth amendment’s due process clause. This then is simply a § 1983 damage suit for deprivation of property without procedural due process. In Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), cert. denied, — U.S.-, 105 S.Ct. 125, 83 L.Ed.2d 67 (1984), this Court dealt with another such suit and held:
in section 1983 damage suits for deprivation of property without procedural due process the plaintiff has the burden of pleading and proving the inadequacy of state processes, including state damage remedies to redress the claimed wrong.
721 F.2d at 1063. This requirement was imposed under the authority of Parratt v. Taylor, supra, and the Supreme Court applied a similar requirement a year after Vicory in Hudson v. Palmer, supra.
Plaintiffs failed to plead the inadequacy of state processes. On appeal they advance two arguments relevant to this point. First, plaintiffs argue that the requirement of showing the inadequacy of state remedies, which grew out of Parratt, applies only to deprivations caused by random and unauthorized acts of misconduct, as opposed to the alleged conspiratorial acts involved in the case at bar where the alleged conspirators are the public officials whose duty it was to see that plaintiffs were not denied due process. Plaintiffs advance no authority for this contention. In Vicory the Court rebuffed a similar attempt to distinguish Parratt.
As we read Parratt, the principle being applied does not turn on the question of whether the claimed constitutional tort affecting property is caused by intentional conduct or negligent conduct or is based on strict liability. Nor does it matter whether the writ at common law would be in detinue (action for wrongful detention of a chattel by a bailor), trespass de bonis asportatis (action for carrying away plaintiff’s chattels), trespass on the case (roughly speaking, an action for negligence) or a motion in a criminal case for return of property held as evidence. The reasoning of Parratt appears to extend at least to all section 1983 cases claiming a procedural due process injury to a property interest____
721 F.2d at 1065.
Plaintiffs next argue that any existing state law remedies are per se inadequate because state law clothes the commissioners in absolute immunity from liability in a suit for damages based on the commissioners’ official conduct. In Hudson v. Palmer, the Supreme Court dealt with a similar contention. The Court examined state law on the immunity question and determined that the defendant would not be entitled to sovereign immunity. 104 S.Ct. at 3205. The Supreme Court of Michigan recently addressed the sovereign immunity issue in some detail. Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984). In regard to the question of immunity of government officials, the court held:
We therefore hold that judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts.
Under this test, no individual immunity exists for ultra vires activities.
420 Mich. at 633-34, 363 N.W.2d at 667-68.
The defendant commissioners are not “highest executive officials” entitled to absolute immunity against claims such as the ones here for malicious destruction of property. Therefore, as is the case with other lower level state officials, the commissioners are immune from tort liability under state law only if, among other things, the commissioners’ acts giving rise to potential liability were committed in good faith. Plaintiffs allege that defendants acted with malice and an intent to ruin plaintiffs’ business and to deprive them of property. If plaintiffs were to prove their allegations in state court, the requirement of good faith action would defeat the defendant commissioners’ claim to individual immunity. We are, therefore, of the opinion that the individual defendants would not enjoy sovereign immunity if plaintiffs pursued the remedies afforded by state procedures. It may be that plaintiffs would not be entitled, under state law, to the same relief potentially available in an action brought under Civil Rights Act. Nevertheless, it has long been recognized that the fact that state procedures would not afford relief identical to that sought in the civil rights action does not make those procedures constitutionally inadequate. Parratt v. Taylor, 451 U.S. at 544, 101 S.Ct. at 1917; Hudson v. Palmer, 104 S.Ct. at 3204.
In short, Michigan law presents a variety of procedures to redress the wrongs that plaintiffs assert. Not only could plaintiffs have taken an appeal from the regulatory proceedings before the Public Service Commission, but they could have brought a state law action in tort or restitution, not to mention seeking one of the different extraordinary writs available to force the commissioners to cease intentionally acting outside their authority. Plaintiffs failed to show that these available procedures did not afford the process that is due under the fourteenth amendment.
V.
The District Court did not deal specifically with plaintiffs’ equal protection claim brought under § 1985(3). Nevertheless, it appears clearly from the record that this claim will not lie, and we affirm the dismissal of the claim.
Plaintiffs allege that defendants denied them equal protection by classifying all telephone companies operating in Michigan according to size and then intentionally discriminating against the small telephone companies. In Browder v. Tipton, 630 F.2d 1149 (6th Cir.1980), this Court held that the “equal protection of the laws” language of § 1985(3) protected only the “so-called ‘discrete and insular’ minorities that receive special protection under the Equal Protection Clause because of inherently personal characteristics.” 630 F.2d at 1150. Additionally, “[s]ection 1985(3) clearly does not reach all torts or equal protection violations measured by the rationality test.” 630 F.2d at 1159. Small telephone companies are not members of a discrete and insular minority of the sort that has traditionally received special protection under the suspect classification analysis of the fourteenth amendment. We therefore conclude that plaintiffs’ § 1985(3) claims do not state a claim upon which relief can be granted.
VI.
Accordingly, we affirm the District Court’s dismissal of all claims involved in this action.
. The Supreme Court recently closed the possibility of a § 1983 procedural due process case based on negligent conduct. Daniels v. Wil-Hams, — U.S. -, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, — U.S.-, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
. This requirement has also been extended to § 1983 procedural due process cases involving liberty interests. Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc); cases cited supra note 1 (apparently extending this requirement sub silentio).
. At oral argument, plaintiffs’ counsel maintained that the equal protection claim was brought under § 1985(3) only. We therefore need not consider whether the above holding would also apply to an equal protection claim asserted under § 1983. Likewise, we state no opinion on the District Court’s dismissal of the claims on alternative grounds of abstention and comity.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_habeas
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Mason McCOY, Petitioner, Appellant, v. E. H. TUCKER, Warden, West Virginia State Penitentiary, Respondent, Appellee.
No. 7655.
United States Court of Appeals Fourth Circuit.
Argued June 9, 1958.
Decided Oct. 6, 1958.
Robert D. Lewis, Asheville, N. C. (Court appointed counsel) for appellant.
Mason McCoy, pro se, on brief.
Gene Hal Williams, Asst. Atty. Gen., State of West Virginia (William Wallace Barron, Atty. Gen., and W. Bernard Smith, Asst. Atty. Gen., State of W. Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.
PER CURIAM.
Mason McCoy, a prisoner in the West Virginia State Penitentiary, sentenced to a term of five to ten years after pleading guilty to a charge of incest upon his fifteen year old daughter, filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of West Virginia. 28 U.S.C.A. Sec. 2253.
Eight times he has unsuccessfully sought relief by writs of habeas corpus in the Supreme Court of Appeals of West Virginia, and three times he has petitioned to the Supreme Court of the United States for certiorari, which has denied his petitions. 348 U.S. 918, 75 S.Ct. 302, 99 L.Ed. 720; 353 U.S. 934, 77 S.Ct. 822, 1 L.Ed.2d 757; 355 U.S. 847, 78 S.Ct. 72, 2 L.Ed.2d 56. The District Judge was unable to determine from the petition and the accompanying papers whether or not the points urged in the present petition had been raised before the highest Court of West Virginia, or were covered by his petitions for certiorari in the Supreme Court of the United States.
On the ground that it did not appear that state remedies had been exhausted, his latest petition was denied without hearing, but with an opinion. The District Judge declined to issue a certificate of probable cause. In 'the absence of such a certificate by the District Judge, or a Judge of this Court, the Court of Appeals is without jurisdiction to hear the appeal.
Because of the growing practice of state prisoners to file in federal courts petitions not only seeking review of state proceedings but also repeating earlier unsuccessful efforts in the federal courts, it may be well to reaffirm here the principles governing cases of this type. The role of federal courts in the review of state proceedings on habeas corpus is a restricted one. They are without authority to retry issues falling within the jurisdiction of the states. Only if it is made to appear that a state prisoner is detained in violation of the Constitution or laws or treaties of the United States can federal jurisdiction arise. Even in such cases, in a system of dual sovereignties orderly procedure requires that the federal court shall refrain from intervening until the state courts have had opportunity to consider and pass upon the points raised. If the state remedy has not been exhausted, including appeal to the state’s highest court and petition in the United States Supreme Court for certiorari, the lower federal courts do not ordinarily act.
When state remedies have been exhausted, the applicant for federal habeas corpus still does not have an automatic right to a hearing. “That most claims are frivolous,” said Justice Frankfurter, “has an important bearing upon the procedure to be followed by a district judge,” Brown v. Allen, 1953, 344 U.S. 443, 460, 73 S.Ct. 397, 409, 443, 97 L.Ed. 469, and the judge, in his discretion, may refuse the writ without evidence or argument. If the application itself fails to set forth facts stating a prima, facie case for federal relief, it may be dismissed summarily, without more, although the applicant is afforded the opportunity to amend a deficient application. 28 U.S.C.A. Sec. 2242. Moreover, where the application states a case for relief, but the district judge discovers from an examination of the record that the state process has given fair consideration to the issues and the evidence, even where the facts are disputed, if the judge is satisfied with the conclusion reached in the state courts, he may likewise deny the writ without hearing or argument. Finally, if the legality of the prisoner’s detention has been determined by a judge or court of the United States on a prior application for the writ, and if the second application presents no new ground not theretofore presented and determined, the judge need not entertain the second application if he “is satisfied that the ends of justice will not be served by such inquiry.” 28 U.S.C.A. Sec. 2244.
Despite the absence of the required certificate of probable cause, we have in this instance treated the papers filed by the appellant as an application to the Judges of this Court for such certificate, and we have inquired broadly to satisfy ourselves whether there is sufficient likelihood of merit in the case to constitute probable cause. We discover none.
The petitioner apparently seeks to raise every conceivable ground, irresponsibly piling allegation upon allegation in disregard of the facts. His assertions are patently insubstantial. For example, ■one is that he was “kidnapped” by the West Virginia officers in Ohio and brought into West Virginia for trial. He is contradicted by his signed waiver of ■extradition. In law, too, the contention lacks validity. Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541.
Another sample allegation is the bold assertion that although he was convicted of incest, he was not indicted for this crime. The indictment on its face provides the refutation. Other claims are made abstractly in the language of the Constitution or court decisions, with no attempt to supply the basic facts. Most brazen of all is the “legal” contention that the girl was not his daughter, but his stepdaughter, and therefore cannot be the subject of incest. Inquiry into the record discloses that she is called a stepdaughter because he neglected to marry the mother until after the girl was born, and public records establish that the child is his.
We have chosen to discuss the case at greater length than ordinarily necessary or desirable, in order to point out that while district judges must be alert to protect constitutional rights, they are not required to issue writs or conduct hearings upon petitions that manifestly fail to present any substantial question, especially when the petition is in substance a mere reiteration of earlier petitions. When, as in this instance, the district judge has filed a carefully reasoned opinion demonstrating the petition’s inadequacy, his refusal to issue a certificate of probable cause will not be disturbed.
Appeal dismissed.
. 28 U.S.C.A., See. 2253. Humphries v. Peppersack, 4 Cir., 1957, 250 F.2d 575; Bell v. Com. of Va., 4 Cir., 1957, 245 F.2d 170; Carter v. Peppersack, 4 Cir., 1957, 242 F.24 750; Cumberland v. Warden, Md. Penitentiary, 4 Cir., 1955, 227 F.2d 310; Farmer v. Skeen, 4 Cir., 1955, 222 F.2d 948; Clark v. Skeen, 4 Cir., 1955, 222 F.2d 423; Allen v. Smyth, 4 Cir., 1954, 213 F.2d 867.
. Harrison v. Skeen, 4 Cir., 1955, 226 F.2d 217; Ferguson v. Manning, 4 Cir., 1954, 216 F.2d 188; Harris v. Swenson, 4 Cir., 1952, 199 F.2d 269; Tyson v. Swenson, 4 Cir., 1952, 198 F.2d 308; Bernard v. Brady, 4 Cir., 1947, 164 F.2d 881; Hawk v. Olson, 1945, 326 U.S. 271, 273, 66 S.Ct. 116, 90 L.Ed. 61; Cash v. Huff, 4 Cir., 1944, 142 F.2d 60; Sanderlin v. Smyth, 4 Cir., 1943, 138 F.2d 729; Wright v. Brady, 4 Cir., 1942, 129 F.2d 109.
. 28 U.S.C.A. Sec. 2241; Brown v. Allen, 1953, 344 U.S. 443, 502, 73 S.Ct. 397, 97 L.Ed. 469. See, Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, where the Court, on habeas corpus by a state prisoner, adjudicated issues arising under the Fourteenth Amendment to the Constitution and also the Federal Kidnapping Act.
. 28 U.S.C.A., Sec. 2254; Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Orr v. State of South Carolina, 4 Cir., 1953, 201 F.2d 669; United States ex rel. Farmer v. Skeen, 4 Cir., 1953, 203 F.2d 950; Allen v. Smyth, 4 Cir., 1954, 213 F.2d 867; Tyler v. Peppersack, 4 Cir., 1956, 235 F.2d 29; Bell v. Commonwealth of Virginia, 4 Cir., 1957, 245 F.2d 170; Humphries v. Peppersack, 4 Cir., 1957, 250 F.2d 575; Davis v. Pepersack, 4 Cir., 1958, 255 F.2d 29. Cf. Lampe v. Clemmer, 4 Cir., 1958, 251 F.2d 465. Special circumstances, however, may make prompt decision desirable and justify earlier resort to the federal courts. Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541.
. On the subject of disposition of applications for habeas corpus without a hearing, see: 28 U.S.C.A. Sec. 2243; Ex parte Quirin, 1942, 317 U.S. 1, 24, 63 S.Ct. 1, 87 L.Ed. 3; Brown v. Aden, 1953, 344 U.S. 443, 461, 506, 73 S.Ct. 397, 97 L.Ed. 469; Farley v. Skeen, 4 Cir., 1953, 208 F.2d 791; Bailey v. Smyth, 4 Cir., 1955, 220 F.2d 954; Humphries v. Peppersack, 4 Cir., 1957, 250 F.2d 575; Clark v. Skeen, 4 Cir., 1955, 222 F.2d 423; Presley v. Peppersack, 4 Cir., 1955, 227 F.2d 325. Cf., however, Commonwealth of Pa. ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 123, 76 S.Ct. 223, 100 L.Ed. 126.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
sc_adminaction
|
066
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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.
AMERICAN FARM LINES v. BLACK BALL FREIGHT SERVICE et al.
No. 369.
Argued February 25, 1970
Decided April 20, 1970
Joseph A. Calif ano, Jr., argued the cause for appellant in No. 369. With him on the briefs were John D. Hawke, Jr., and William L. Peterson, Jr. Arthur J. Cerra argued the cause for appellant in No. 382. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, Deputy Solicitor General Springer, John H. D. Wigger, and Robert W. Ginnane.
William H. Dempsey, Jr., argued the cause for appel-lees in both cases and filed a brief for appellees Consolidated Freightways Corp. et al. In both cases Ed White filed a brief for railroad appellees; William B. Adams, Peter T. Beardsley, and Nelson J. Cooney filed a brief for certain motor carrier appellees, and James W. Wrape and Robert E. Joyner filed a brief for Dealers Transit, Inc., et al.
Together with No. 382, Interstate Commerce Commission v. Black Ball Freight Service et al., on appeal from the same court.
Mr. Justice Douglas
delivered the opinion of the Court.
The Interstate Commerce Commission has statutory power to grant motor carriers temporary operating authority “without hearings or other proceedings” when the authority relates to a “service for which there is an immediate and urgent need” and where there is “no carrier service capable of meeting such need.” Interstate Commerce Act § 210a, 52 Stat. 1238, as amended, 49 U. S. C. § 310a. The ICC processes applications for such authority under rules promulgated in 1965. 49 CFR pt. 1131. Among other things, those rules require that an applicant accompany his application with supporting statements of shippers that contain information “designed to establish an immediate and urgent need for service which cannot be met by existing carriers.” Id., § 1131.2 (c). Each such supporting statement “must contain at least” 11 items of information including the following:
“(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts.
“(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal.”
Appellant American Farm Lines (AFL) filed an application for temporary operating authority. The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary Authorities Board denied the application on the ground that the “applicant has not established that there exists an immediate and urgent need for any of the service proposed.” Division I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order and the ICC thereupon ordered postponement of the operation of its grant. At that time numerous petitions for reconsideration were pending before the Commission and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter a three-judge District Court conducted a full hearing on the merits. The ICC admitted at that stage that its first order “may not have been based upon evidence to support its conclusion,” but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F. Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction. 396 U. S. 884.
I
The first alleged error in the case is the failure of the Interstate Commerce Commission to require strict compliance with its own rules. The rules in question, unlike some of our own, do not involve “jurisdictional” problems but only require certain information to be set forth in statements filed in support of applications of motor carriers for temporary operating authority.
The Caputo statement asserted that part of the tremendous volume of traffic that DOD moved in the territories involved had to be moved “in the most expeditious manner possible,” and that, since air transport was prohibitively expensive “except in the most extreme emergencies,” there was an “imperative” need for the most expeditious motor carrier service. The need for this expeditious transport did not rest merely on a desire to obtain the most efficient service, but in addition rested on the need to coordinate arrival times of shipments with factory production schedules and with ship-loading or airlift times for overseas shipments. The particular inadequacies in existing service were pointed out, namely, the delays inherent in joint-line service, regular-route service, and the use of single drivers. The statement did not assert that none of the existing carriers provided sufficiently expeditious service to meet DOD needs; rather it claimed that the carriers providing satisfactory service in the territories in question were so few in number that the additional services of AFL were required to meet DOD’s transportation needs.
Concededly, the Caputo statement did not give the dates of DOD’s efforts to secure service from other existing carriers, or a complete list of the names and addresses of the carriers who failed or refused to provide service, as required by the terms of subsections (8) and (9), 49 CFR § 1131.2 (c). Such a complete listing of this information, given the volume of traffic involved, would indeed have been a monumental undertaking.
The failure of the Caputo statement to provide these particular specifics did not prejudice the carriers in making precise and informed objections to AFL’s application. The briefest perusal of the objecting carriers’ replies, which cover some 156 pages in the printed record of these appeals, belies any such contention. Neither was the statement so devoid of information that it, along with the replies of the protesting carriers, could not support a finding that AFL’s service was required to meet DOD’s immediate and urgent transportation needs. In our view, the District Court exacted a standard of compliance with procedural rules that was wholly unnecessary to provide an adequate record to review the Commission’s decision.
The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition it is said the rules were intended primarily to facilitate the development of relevant information for the Commission’s use in deciding applications for temporary authority.
We agree with the Commission that the rules were promulgated for the purpose of providing the “necessary information” for the Commission “to reach an informed and equitable decision” on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down “if the applications do not adequately comply with [the] . . . rules.” Ibid. (Emphasis added.) The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion as in Vitarelli v. Seaton, 359 U. S. 535; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. Accardi v. Shaughnessy, 347 U. S. 260; Yellin v. United States, 374 U. S. 109. Thus there is no reason to exempt this case from the general principle that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.” NLRB v. Monsanto Chemical Co., 205 F. 2d 763, 764. And see NLRB v. Grace Co., 184 F. 2d 126, 129; Sun Oil Co. v. FPC, 256 F. 2d 233; McKenna v. Seaton, 104 U. S. App. D. C. 50, 259 F. 2d 780.
We deal here with the grant of temporary authority similar to that granted in Estes Express Lines v. United States, 292 F. Supp. 842, aff’d, 394 U. S. 718. There the grant of temporary authority was upheld even though there may not have been literal compliance with subsections (8) and (9) of the Commission’s rules. That result was in line with § 210a (a) of the Act which was designed to provide the Commission with a swift and procedurally simple ability to respond to urgent transportation needs. That functional approach is served by treating (8) and (9) not as inflexible procedural conditions but as tools to aid the Commission in exercising its discretion to meet “an immediate and urgent need” for services where the existing service is incapable of meeting that need. Unlike some rules, the present ones are mere aids to the exercise of the agency’s independent discretion.
II
After the Commission issued its first order, petitions for reconsideration were filed and before they were passed upon, some carriers filed suit and a single judge temporarily restrained operation of that first order. It was after that order issued and over a month before the case was argued to the three-judge court that the Commission granted the petitions for rehearing and reopened the record and received the Caputo verified statement.
The District Court held that the pendency of the review proceedings deprived the Commission of jurisdiction to reopen the administrative record.
Congress has provided as respects some regulatory systems that the agency may modify any finding up until the record is filed with a court. Such is the provision of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U. S. C. § 160 (d) and § 160 (e), which provides that any subsequent changes in the record will be made only at the direction of the court. A similar provision is included in § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45 (c) and in § 11. of the Clayton Act, 38 Stat. 734, as amended, 15 U. S. C. § 21 (c). And a like provision is included in the review by the courts of appeals of orders of other designated federal agencies. 28 U. S. C. §2347 (c) (1964 ed., Supp. IV). But there is no such requirement in the Interstate Commerce Act. It indeed empowers the Commission “at any time to grant rehearings as to any decision, order, or requirement and to reverse, change, or modify the same.”
The power of the Commission to grant rehearings is not limited or qualified by the terms of 49 U. S. C. § 17 (6) or § 17 (7). Thus in § 17 (6) it is said, “Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor be made to appear.” And § 17 (7) provides that if after rehearing or reconsideration the original decision, order, or requirement appears “unjust or unwarranted,” the Commission may “reverse, change, or modify” the same. These broad powers are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court.
Unless Congress provides otherwise, “[wjhere a motion for rehearing is in fact filed there is no final action until the rehearing is denied.” Outland v. CAB, 109 U. S. App. D. C. 90, 93, 284 F. 2d 224, 227. In multi-party proceedings, such as the present one, some may seek judicial review and others may seek administrative reconsideration. “That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes.” Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U. S. App. D. C. 324, 327, 248 F. 2d 646, 649. The concept “of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit” some statutory schemes, ibid., but it does not fit this one.
This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that thereafter the Commission is “without power to act inconsistently with the court’s jurisdiction.” Inland Steel Co. v. United States, 306 U. S. 153, 160. When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court’s protective order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order and made the second order effective only on further order of the Commission. Since by the Act the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings.
The Commission reopened the record merely to remedy a deficiency in it before any judicial review of the merits had commenced and fully honored the stay order of the District Court. It therefore acted in full harmony with the court’s jurisdiction.
Reversed.
Section 210a(a) provides in part:
“To enable the provision of service for which there is an immediate and urgent need to a point or points or within a territory having no carrier service capable of meeting such need, the Commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by motor vehicle, as the case may be. 2
49 CFR § 1131.4 (b) (2) defines the statutory term “immediate and urgent need” as follows:
“An immediate and urgent need justifying a grant of temporary authority will be determined to exist only where it is established that there is or soon will be an immediate transportation need which reasonably cannot be met by existing carrier service. Such a showing may involve a new or relocated plant, different method of distribution, new or unusual commodities, an origin or destination not presently served by carriers, a discontinuance of existing service, failure of existing carriers to provide service, or comparable situations which require new motor carrier service before an application for permanent authority can be filed and processed.”
See 49 CFR § 1131.2(c).
AFL is a federation of agricultural marketing cooperatives created in 1964 to provide transportation for its members. By-virtue of § 203 (b) (5) of the Interstate Commerce Act, 54 Stat. 921, as amended, 49 U. S. C. §303 (b)(5), AFL may transport freight for its members without obtaining a certificate of convenience and necessity from the ICC. In 1965 § 203 (b) (5) was construed to exempt from the certification requirement any freight transportation by an agricultural cooperative for shippers other than its own members to the extent that such nonmember transportation is incidental and necessary to its principal transportation activities. See Northwest Agricultural Cooperative Assn. v. ICC, 350 F. 2d 252. The next year, AFL began transporting freight for DOD. In 1968-1969 AFL’s ability to continue serving DOD was restricted by two events. First, certain competing carriers obtained injunctions prohibiting AFL from making two consecutive movements for DOD and from transporting freight for any nonmember except when going to pick up, or returning from delivery of, a member’s freight. Munitions Carriers Conference, Inc. v. American Farm Lines, 415 F. 2d 747. Second, § 203 (b) (5) was amended to restrict the exemption for agricultural cooperatives to those whose transportation for nonmembers does not exceed 15% of their total annual interstate transportation, measured by tonnage. See 82 Stat. 448, 49 U. S. C. §303 (b)(5) (1964 ed., Supp. IV). AFL had transported 74,155,685 pounds for DOD between December 1966 and June 1968, and, in an effort to continue providing this service, applied to the ICC in May 1968 for temporary operating authority. The authority sought was to transport general commodities, including Class A and B explosives moving on government bills of lading over irregular routes between points in Kentucky, Indiana, Illinois, Missouri, Arkansas, Louisiana, Texas, Oklahoma, and Kansas on the one hand, and points in Washington, California, Nevada, Utah,, and Arizona on the other.
AFL has applied to the ICC for a certificate of permanent authority. It was estimated at oral argument that final action on this application will not be taken by ICC before mid-1971. Meanwhile the ICC may extend the temporary authority. Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R. Co., 353 U. S. 436.
The precise chronology of these events is shown in n. 9, infra.
ICC is not appealing from the District Court's decision setting aside' the first order.
It was once proposed that the same requirement be written into the law respecting those orders of the Commission reviewed by the courts of appeal as distinguished from the three-judge district courts. See H. R. Rep. No. 1619, 80th Cong., 2d Sess., 4. But the ICC was deleted from the measure. Id., at 1. And the Act as approved covered only other designated agencies. 28 U. S. C. §2342 (1964 ed., Supp. IV).
See Baldwin v. Scott County Milling Co., 307 U. S. 478, 484.
The District Court’s stay was issued October 2, 1968. On October 9, the Commission stayed the effective date of its first order “until further order of the Commission.” On November 5, 1968, the Commission reopened the proceeding before it and directed AFL, in light of the District Court's order, “not to perform” any operations under its first order “until further order of the Commission.” On November 12, 1968, the Commission advised the District Court of its action. On December 20, 1968, the Commission entered its second order which authorized commencement of service by AFL only on further notice by the ICC. On December 31, 1968, a supplemental complaint was filed in the District Court challenging the Commission’s second order. On January 6, 1969, a single judge of the District Court stayed that order. On March 26, 1969, the District Court entered its judgment now being reviewed.
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. August MANGIFEST, Respondent.
No. 86-3447.
United States Court of Appeals, Third Circuit.
Argued Feb. 24, 1987.
Decided Aug. 21, 1987.
George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., J. Michael O’Neill, Counsel for Appellate Litigation, Thomas L. Holzman, Asst. Counsel for Appellate Litigation, Sylvia T. Kaser (argued), U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for petitioner.
James J. Panchik (argued), Kittanning, Pa., for respondent.
Allen R. Prunty, Jackson, Kelly, Holt & O’Farrell, Charleston, W.Va., for Consolidation Coal Co. — amicus curiae.
John J. Bagnato (argued), Spence, Custer, Saylor, Wolfe & Rose, Johnstown, Pa., for BethEnergy Mines, Inc. — amicus curiae.
Mark E. Solomons, Arter & Hadden, Washington, D.C., for Old Republic Ins. Co. — amicus curiae.
Before WEIS, BECKER and HUNTER, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
Under the Black Lung Benefits Act, disability claims ultimately come before an Administrative Law Judge (ALJ) who must, inter alia, determine the reliability of medical evidence submitted to prove that the claimant is totally disabled. The regulations promulgated by the Secretary of Labor provide that the AU may find a miner totally disabled on the basis of a physician’s judgment if the judgment is “reasoned” and based on medically acceptable evidence. 20 C.F.R. § 718.204(c). In this case, we must decide whether the Secretary has limited the AU’s discretion under § 718.204(c) by providing that a judgment contained in a medical report “alone” may support a finding of total disability only if the report is in “substantial compliance” with a quality standard set out at 20 C.F.R. § 718.104. That section mandates that a report include a medical and employment history, describe certain test results and certain symptoms. The Secretary’s designate, the Director of the Office of Workers’ Compensation Programs (OWCP) advocates this view.
The Benefits Review Board (BRB) rejected the Director’s contention. Following one of its prior decisions based both on construction of the regulations and statutory grounds, the BRB held that the regulation’s quality standards, of which the medical report standard is only one, do not preclude AU’s from relying on noncomplying evidence. In the BRB’s view, the quality standards have a mandatory effect only on the OWCP’s internal decisionmaking not on ALJ’s, who adjudicate claims only after the OWCP has denied them. The BRB therefore affirmed an ALJ’s decision granting benefits to respondent August Mangifest despite the ALJ’s primary reliance on a medical judgment contained in an apparently noncomplying report.
The Director now petitions for review. On the basis of our own interpretation of the regulations, but for different reasons than those of the BRB, we agree with the BRB that an AU may find a miner totally disabled in reliance upon a medical judgment in a noncomplying report so long as the judgment is reasoned and based on medically acceptable evidence as required by § 718.204(c)(4). We believe that the ALJ must make this decision “in accordance with” § 718.104, but only in the sense that that section should serve as a guide: it identifies the kinds of information AU’s should expect a physician to rely on in finding total disability, and it instructs the hearing officer to examine the evidence in determining whether the physician’s diagnosis was reasoned. Such a rule is consistent with the Black Lung statutes and the APA.
We ground our decision on “our own interpretation” notwithstanding the deference normally required to an interpretation of the Director because we find ambiguities and inconsistencies in the Director’s interpretation of the regulations that are sufficiently great to preclude deference in this case. However, we also believe that our result is ultimately consistent with the views of the Director: the test the Director suggests for evaluating a report’s substantial compliance with the quality standards of § 718.104 requires the AU to engage in the same analysis of the documentation and reasoning of the report’s medical judgment that we find required by § 718.-204(c)(4).
Although we reject a rigid approach to the quality standard regulation, we grant the petition for review and remand this case for further proceedings. The ALJ did not use the quality standard as a guideline in determining whether the medical judgments he relied on were documented and reasoned. The ALJ also failed specifically to find the medical judgment documented and reasoned or to explain that finding. Clear articulation was necessary because the medical report apparently deviated substantially from the quality standard.
I. Regulatory Structure
Disability claims filed after March 31, 1980 are evaluated under the criteria established by Part 718 of the permanent black lung regulations. See 20 C.F.R. § 718.2, 725.4(a) (1987). Under Part 718, the miner must prove that he has pneumoconiosis, that he contracted it through his coal mine employment, and that he is totally disabled due to the disease. See 20 C.F.R. §§ 718.-201-.204 (1987).
Subpart C of the Part 718 regulations, 20 C.F.R. §§ 718.201-.206, establishes criteria for finding these three elements necessary to a black lung claim. At issue in this case are the criteria for finding total disability set out in § 718.204. Subsection (b) of that section defines total disability: a miner is totally disabled if he is incapable of performing his usual coal mine work and if he cannot engage in gainful employment in the immediate area of his residence requiring skills comparable to those he used in his mine employment. See also 30 U.S.C. § 902(f)(1)(A). Subsection 718.204(c) then sets out medical criteria for determining whether a miner meets this standard. It provides that an AU must find total disability, in the absence of contrary evidence, if pulmonary function or arterial blood gas tests produce certain results, § 718.-204(c)(l-2), or if the medical evidence demonstrates that the miner has cor pulmonale with right sided congestive heart failure, § 718.204(c)(3). In addition, paragraph 718.204(c)(4), the paragraph most directly relevant to this case, provides that an AU “may” find total disability if a physician “exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques concludes that a miner’s respiratory or pulmonary conditions prevents or prevented the miner from engaging in employment” as defined by subsection (b).
This case concerns the relationship between the criteria in § 718.204(c)(4) and § 718.104 in subpart B of the Part 718 regulations. Subpart B generally sets out quality standards for most kinds of medical evidence relevant to Black Lung claims, including X-rays, pulmonary function studies, arterial blood-gas studies, and autopsies and biopsies. Section 718.104, which we set out fully below, provides the standard for medical reports. It requires that a report “of any physician examination conducted in connection with a claim” use either a form supplied by the OWCP or contain “substantially the same information.” The information required includes the miner’s medical and employment history, the results of medical tests, and all manifestations and symptoms of chronic respiratory or heart disease.
In Budash v. Bethlehem Mines Corp, 9 Black Lung Rep. 1-48 (en banc), aff'd on reconsideration en banc, 9 Black Lung Rep. 1-104 (1986), the BRB considered the question whether a medical report not in compliance with the quality standard at § 718.104 may nevertheless justify a finding of total disability under § 718.204(c)(4). Rejecting the Director’s contention, the BRB held that it could. The BRB did not dispute the authority of the Labor Secretary generally to establish criteria and other reasonable rules that bind the AU’s consideration of claims. See 30 U.S.C. § 902(f)(1), § 936. The BRB believed, however, that the exclusion of non-complying reports would violate the statutory requirement set out at 30 U.S.C. § 923(b) that claims decisions be based on “all relevant evidence.” The BRB also believed that section 7 of the Administrative Procedure Act, 5 U.S.C. § 556(c), requires consideration of all relevant evidence and required rejection of the Director’s position. Finally the BRB felt that the regulations themselves do not require the exclusion of non-complying evidence.
The BRB accordingly held that § 718.104 has a mandatory effect only on the OWCP’s internal decision whether to grant or deny claims. While ALJ’s “may” consider the quality standard, the BRB believed, those standards are not binding upon them. 9 Black Lung Rep. at 1-50 to 1-51.
II. Facts and Procedural History
Respondent August Mangifest is a seventy-two year old resident of Vandergrift in Western Pennsylvania. From 1929 until 1941, Mangifest worked in underground coal mines as a loader, driller and weigh-man. Following this coal mine experience, Mangifest worked in a váriety of jobs, most recently as a part-time janitor and as a restaurant supply salesman. On April 8, 1980, Mangifest filed a claim for benefits under the Black Lung Benefits Act as amended, 30 U.S.C. §§ 901-45. (1982). The OWCP denied the claim and Mangifest requested a formal hearing before an AU.
All parties agree that Mangifest has penumoconiosis and that he contracted it through his employment as a coal miner. The Director of OWCP and Mangifest dispute, however, whether Mangifest is “totally disabled.” Because the Director offered no information to the AU to show that Mangifest is not disabled, the dispute pertains entirely to the adequacy of Mangifest’s proofs.
Taken alone, neither Mangifest’s pulmonary functions studies nor arterial blood-gas tests established total disability under §§ 718.204(c)(1) or (2). Nor does Mangifest suffer from cor pulmonale, which may establish total disability under § 718.-204(c)(3). To prove total disability, Mangifest therefore submitted the reports of four physicians. Although all agreed that Mangifest suffered from pneumoconiosis, the reports differed in their comprehensiveness and in their conclusions bearing on Mangifest’s degree of disability.
Mangifest submitted two reports which carefully listed symptoms and test results, one from Dr. Arthur E. Barnes and one from Dr. J.D. Silverman. Dr. Barnes’s report offered no assessment of the degree of disability. Dr. Silverman’s report concluded that Mangifest suffered from anthracosilicosis and “should not be permitted to return to work in any dusty atmosphere.” (A. at 106) The Director contends that neither of these reports can establish total disability because neither found total disability. According to the Director, Dr. Silverman’s finding that Mangifest “should not be permitted to return” to a dusty environment was not a finding that Mangifest is totally disabled.
In addition, Mangifest submitted reports from two members of the Russellton Medical Group clinic. Dr. Thomas B. Connelly’s report stated that Mangifest “is totally and permanently disabled” and that he “would be unable to do coal mining work.” But Dr. Connelly’s report was a mere one page letter. It listed no medical results other than Mangifest’s statement of symptoms and an X-ray. Dr. Jeffrey M. Wolff, found by the AU to be Mangifest’s treating physician, provided a similar one page report. It stated that Mangifest is “totally and permanently disabled” and “is unable to do any further coal mining work.” Although it listed more symptoms and test results than Dr. Connelly’s letter, the report failed to mention ventilatory function studies or several other pieces of information required by the form.
The Director claims that neither Dr. Connelly’s nor Dr. Wolff’s report may support a finding of total disability because neither was in “substantial compliance” with § 718.104. Because of their brevity, there seems little dispute that the reports in and of themselves fail to satisfy the requirements of § 718.104. Despite the facial inadequacy of their reports, however, both Drs. Connelly and Wolff may have based their judgments on the wide range of evidence required by the medical report standard. The record establishes that Mangifest had been seen at the Russellton clinic for over one year, and that objective tests, medical histories, and other examinations had been conducted at the clinic. Mangifest submitted many of those results to the AU separately.
Even if the AU may consider the reports of Drs. Connelly and Wolff, the Director argues that no finding of total disability is permissible because the reports are not reasoned. The Director contends that the doctors’ conclusions of total disability were based entirely on evidence that does not measure the degree of disability.
The AU disagreed with the Director. He held that Dr. Wolff's report did not have to meet the quality standards of § 718.104 because the fact that Dr. Wolff was Mangifest’s treating physician meant that the report was not prepared in connection with the claim for benefits. According to the ALJ, the report therefore could be a basis for finding total disability under § 718.204(c)(4). The AU found the report credible because it was partially corroborated by the opinions of the other doctors. The ALJ concluded that Mangifest was totally disabled due to pneumoconiosis and awarded benefits from April 8, 1980, the date Mangifest filed his application.
The Director appealed to the BRB. The BRB assumed for purposes of its consideration that Dr. Wolff’s report was prepared in connection with the claim. The BRB further assumed that the report was not in substantial compliance with the quality standards set out at § 718.104. Relying on Budash, however, the BRB held that the Dr. Wolff’s report could support a finding of total disability under § 718.204(c)(4). In response to the Director’s claim that Wolff’s and Connelly’s medical reports were not reasoned, the BRB noted that such a judgment was a matter for the AU’s discretion. Finally, the BRB found that the AU had based his finding of total disability on “substantial evidence” and therefore affirmed.
In this court, the Director renews the arguments he made before the BRB. He stresses the need for deference to his position as the delegate of the Secretary of Labor. Three mining or insurance companies, appearing as amici curiae, support Mangifest’s contention that a noncomplying medical report can justify a finding of total disability. Mangifest, however, has abandoned any contention that Dr. Wolff’s report was not prepared in connection with a claim. Because of our construction of the regulations, we reach only some of the statutory issues presented to us.
III. The Standard for Dealing with Medical Reports
A. Deference
The Supreme Court has made clear that courts must defer to an agency’s consistent interpretation of its own regulation unless it is “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock and Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); New Haven Bd. of Ed. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); Revak v. National Mines Corp., 808 F.2d 996 (3d Cir.1986); see generally R. Weaver, Judicial Interpretation of Administrative Regulations: The Deference Rule, 45 U.Pitt.L.Rev. 587, 620-22 (1984). We owe such deference to the Director, not to the BRB, for the Director is the maker of policy. See Potomac & Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980) (requiring deference to Director not to BRB in matters of statutory interpretation); Bethlehem Mines Corp. v. Director, OWCP, 766 F.2d 128, 130 (3d Cir.1985) (requiring deference to Director not to BRB in construction of regulations).
We have cautioned, however, that this deference does not permit us to defer to an “interpretation” in an adversary proceeding that strains “the plain and natural meaning of words in a standard to alleviate an unlikely and uncontemplated hazard.” Bethlehem Steel v. OSHA, 573 F.2d 157, 161 (3d Cir.1978). As the Supreme Court in Bowles deferred to the agency’s explanation of what a particular phrase in a regulation meant, we defer to a policymaker’s plausible explanation of the language in a regulation. That rule, however, does not permit the policymaker, in an adjudicatory proceeding, to imply language that simply does not exist:
The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend.
Bethlehem Steel, 573 F.2d at 161.
Furthermore, we have in the past differentiated between a reasoned interpretation of a regulation’s language and a mere position about what the regulations require. See Bevak, 808 F.2d at 1003 (refusing to defer to agency view in absence of “any explanation for how [court] might find support for the [agency’s] position in the language of the regulation”). Although we must defer to an agency regulation that is not “plainly erroneous,” we must understand how the agency connects its position to the language of the regulation in order to evaluate its plausibility. If we cannot understand the agency’s reasoning, if it is self-contradictory, or if it is ambiguous, we cannot defer to it.
In this case the Director contends that because “the reports of Drs. Wolff and Connelly are not in substantial compliance with [the] regulation, the AU could not rely upon either report in determining that Mangifest was totally disabled by pneumoconiosis.” Director’s Brief at 35. This statement in the Director’s brief is consistent with the views of the Director’s counsel at oral argument. She contended that an AU could not use noncomplying evidence even to tip the scales of a decision that had the support of complying evidence on both sides. In that view, non-complying evidence would be worthless because it could never make the difference between one result and another.
This severe view, however, is inconsistent with the interpretation of the regulations otherwise expressed in the Director’s briefs. At several points, the Director takes the position only that a non-complying medical report may not, “standing alone, sustain the party’s burden of proof on an element of entitlement.” Director’s Brief at 17. Apart from that one prohibition, such evidence “is to be assigned weight by the trier-of-fact based on all circumstances of the case.” Id.
In this case, the AU did not find total disability on the basis of Dr. Wolff’s report alone. Instead, he found total disability because he found Dr. Wolff’s report corroborated by the other three reports. This finding appears to be permissible under the less strict interpretation of the Director presented to us. The discrepancy between the Director's less severe view of what the regulations require and alternative submissions as to what they mandate in this case makes us feel less than confident that we fully understand even his less severe interpretation.
Not only does the Director present conflicting interpretations, but he has difficulty connecting each view with the language of the regulations. As we discuss more fully below, the Director bases his analysis of § 718.104 on a comparison with other quality standards. Quality standards for ventilatory studies, for x-rays, and for arterial blood-gas studies state that no test can constitute evidence unless it is in substantial compliance with the quality standard. The Director contends that we should read § 718.104 as if it included similar language for medical reports.
If § 718.104 included such language, it would state that a non-complying report cannot be evidence at all. It would therefore support the severe view. For us to infer language that does not otherwise exist, however, we would have to to defer to the Director’s “subjective” view of the regulation, not to its objective meaning. A claimant proceeding in good faith should not be subjected to a trap brought about by an interpretation of a regulation hidden in the bosom of the agency.
Furthermore, even if § 718.104 contained language like that of the other quality standards, it would not support the lenient interpretation. The section would state that a noncomplying report cannot be evidence at all; it would not state that a non-complying report can be evidence when combined with other evidence but cannot be evidence when considered alone. The Director has therefore provided us with no way in which we can connect the more lenient interpretation with the language of the regulations.
Because of these inconsistencies in the Director’s views and because of the Director’s failure to provide a reasoned explanation of the regulations, we can find no coherent view of the way the regulations interact to which we owe deference. The Director’s understanding of some particular regulatory sections is clear and objectively supportable. We will defer to them as appropriate. For the way in which the regulations fit together however, we must rely on our own interpretation.
B. Interpretation of the Regulations
In its Budash decision, the BRB supplied two reasons based solely on the regulations to support its view that the medical report quality standard does not apply to AU deliberations except to the extent that the AU chooses to use them as a guide. First, it held that the quality standards in Part 718 subpart B generally apply only to the internal decisionmaking of the OWCP because they are entitled “Criteria for the Development of Medical Evidence.” Because the OWCP is responsible for the development of the medical evidence, the BRB reasoned, this title indicates the internal purpose of the guidelines.
We agree with the Director, however, that Part 718, Subpart B standards are not mere, internal agency guidelines. Section 725.456(c) of Title 20 C.F.R. provides explicitly that “ [a]ll medical records and reports submitted by any party shall be considered by the administrative law judge in accordance with the quality standards contained in Part 718 as amended from time to time.” Thus, the AU must make benefit decisions “in accordance with” the quality standards, including § 718.104.
Second, the BRB reasoned that if § 718.-104 controlled the AU’s findings, it would conflict with § 718.204(c)(4), which authorizes an AU to find total disability if a medical judgment is documented and reasoned. According to the Director, however, § 718.104 “insures no more than that the reports contain sufficient documentation upon which a physician may form a reasoned medical judgment.” Director’s Brief at 28-29. In contrast, § 718.204 contains the additional requirement that the judgment be “reasoned.” Id. We find the Director’s reasoning persuasive and disagree with the BRB that the two sections necessarily conflict. The alleged conflict between the two sections is no basis for concluding that § 718.104 applies only to the OWCP and not to AU’s.
Although we therefore agree with the Director that the AU must make decisions “in accordance with” the quality standards, that requirement yields no clear command in this case. The quality standards for ventilatory function studies, X-rays, and autopsy or biopsy evidence provide explicitly that non-qualifying test results shall not constitute evidence unless they are in substantial compliance with the standards. 20 C.F.R. §§ 718.102(e), 718.103(c), 718.-106(b). In contrast, the § 718.104 standard for reports of physican examinations contains no such “substantial compliance” language. The essence of the Director’s argument is that the existence of the language of exclusion in three sections implies similar treatment of § 718.104. Unless we assume general sloppiness, however, the omission in § 718.104 suggests a consciously different policy.
The arterial blood-gas studies subsection also contains no “substantial compliance” language. Perhaps this omission suggests that the drafters were in fact sloppy and that the omission in the medical report standard may have been inadvertent. But sections of other Parts of the black lung regulations require an AU to consider noncomplying medical reports even while they exclude noncomplying medical tests.
For example, the regulations applicable to proceedings under the interim presumption of Part 727 require that X-ray, ventilatory study or blood gas study evidence that does not comply with the quality standards of Part 718 shall not be sufficient to invoke the presumption. 20 C.F.R. § 727.208 (1987); see also Strako v. Zeigler Coal Co., 3 Black Lung Rep. 1-136 (B.R.B.1981) (noncomplying ventilatory studies cannot invoke interim presumption). But medical reports are not included in this rule. The BRB has accordingly held noncomplying medical reports sufficient to invoke the interim presumption under § 727.203(a)(4). See Parsons v. Director, OWCP, 6 Black Lung Rep. 1-273 (B.R.B.1983). This example suggests a general agency policy of treating deviations from medical report standards more leniently than deviations from other standards.
Section 718.206 of the regulations also supports this view. That section states:
Decisions, statements, reports, opinions, or the like, of agencies, organizations, physicians or other individuals, about the existence, cause and extent of a miner’s disability, or the cause of the miner’s death, are admissable. If properly submitted, such evidence shall be considered and given the weight to which it is entitled as evidence under all the facts before the adjudication officer in the claim.
This section appears to delegate discretion to the AU to determine the weight to which a doctor’s opinion “is entitled” under all the facts of the case. Indeed, the Director agrees that an AU has broad discretion generally although he claims that one rigid rule restricts this discretion, i.e., that noncomplying evidence alone cannot demonstrate total disability. But § 718.206 does not differentiate between complying and noncomplying physicians’ reports. Neither does it differentiate between the use of a physician’s report alone and its use with other evidence. Instead, § 718.206 requires the AU to determine “under all the facts” what weight to accord any physician’s report. Nothing in the regulations themselves, as opposed to statements by the Director in this litigation, suggests to the contrary.
Common sense explains why the Secretary would treat noncomplying medical tests and noncomplying medical reports differently. A medical test administered incorrectly may very well be completely unreliable. The Secretary so indicated in comments attached to the original publication of the regulation.
The report of a physician about a miner’s degree of disability, however, may have a great deal of significance even if a report lacks full documentation. The report does not necessarily indicate the information upon which the physician relied. It is often buttressed by deposition testimony. In addition, a medical report carries with it the unspoken but powerful ally of the doctor’s professional judgment. Like other judgments, a medical judgment is sometimes based upon instinct, the unarticulated and unarticulable opinion that is nonetheless grounded in years of experience. Apparently out of respect for this medical intuition, the regulations permit an AU to find total disability on the basis of a medical judgments even if the medical tests are inconclusive.
Further explaining why § 718.104 might not require the exclusion of noncomplying medical reports, the Director’s own contentions to us in this case indicate that not all the medical requirements of § 718.104 relate to all of the facts relevant to a disputed claim. For example, the Director informs us that an X-ray is not normally relevant to the degree of disability. If the physician’s report fails to mention an X-ray, therefore, that failing should not normally affect the credibility of the physician’s finding of total disability.
Finally, the statutory language suggests a distinction between medical reports and medical tests. Code section 902(f)(1)(D) of the Black Lung Act obligates the Secretary to establish criteria to assure the accuracy of medical tests. See supra note 10. Whether the Secretary may or may not find in this section the authority to establish criteria for medical reports, see infra note 23, Congress’ concern for reliability obviously focused most acutely on tests, not reports.
For all these reasons, we do not construe the regulations to require the exclusion from an AU’s consideration of noncomplying medical reports. Instead, we hold that a medical judgment contained in a noncomplying report may constitute substantial evidence of total disability if, as required by § 718.204(c), it is “reasoned” and “based on medically acceptable clinical and laboratory diagnostic techniques.” In accordance with § 718.206, the AU must base this determination on all the facts of the case.
Section 718.104, however, is obviously not meaningless, and § 725.456(c) requires that an AU make a decision “in accordance with” it. It sets forth guidance about what information a physician should normally consider in making medical judgments. It also reflects an intention to have the AU examine the evidence on which the physician relied. In determining whether a report is reasoned and documented under § 718.204(c), the AU must therefore look to § 718.104 for guidance.
C. The Apparent Congruence Between the Director’s Interpretation and Our Own
Under our construction of the regulations, as we have just explained, we do not read into § 718.104 language to the effect that a report not in substantial compliance cannot constitute evidence. Even were we to accept the Director’s contention that we should do so, however, we believe that the ultimate requirements of the regulations applicable to this case would not change. As presented by the Secretary, the analysis an AU must use to decide whether a report is in “substantial compliance” with § 718.104 appears the same as the analysis the AU must use under § 718.204(c)(4) to determine if a medical judgment is “reasoned” and “based on medically acceptable clinical and laboratory diagnostic techniques.”
The Director certainly appears to be of the view that § 718.104 and § 718.204(c)(4) require different analyses. We do not contend that they necessarily coalesce. Nor do we contend, as Amici suggest, that a substantial compliance standard is hopelessly vague. The question whether a report is in “substantial compliance” could focus entirely on the adequacy of the report, not taking into account the other facts of the particular case that might influence the reliability of the judgment expressed in the report. The AU would determine only whether the report lacked a piece of information that normally bears a significant relation to a judgment’s reliability.
For example, if a report lacked a date, as required by the form provided pursuant to § 718.104, the AU might determine that this technical deficiency did not make the report unreliable. On the other hand, if the report lacked the results of an X-ray, which normally bears a significant relationship to its reliability, the AU would certainly determine that the report is not in “substantial compliance.”
Using this analysis, an AU might determine that a report is not in substantial compliance even if the judgment expressed in it would satisfy the requirement of § 718.204(c) that it be documented and reasoned. For example, the report lacking an X-ray would presumably be noncomplying but it would still be sufficiently documented and reasoned to support a medical judgment that the claimant was totally disabled. (Perhaps such a rule would exist to encourage complete reports that make the determination of reliability easier.)
The Director, however, has disclaimed this view of the substantial compliance test. He states in his brief that “ ‘substantial compliance’ determinations must be made on a case-by-case basis, taking into account all relevant facts in the record” and that “it does not serve to exclude credible, probative evidence.” Director’s Reply Brief at 13-14. The Director stresses that the “substantial compliance” standard “is a rule of reason, a dynamic concept, governing discretionary determinations by the factfinder and it therefore cannot be stated in precise terms. To do so would be to take away the very discretion accorded the trier-of-fact under the regulations and the statute.” Director’s Reply Brief at 13.
In oral arguments before the BRB in the case of Hucker v. Consolidated Coal Co., 9 B.L.R. 1-137 (1986) (en banc), counsel for the Director stressed, “(W]hat’s reasonable is what’s reliable.” Transcript provided in Appendix to Brief of Amici at 27F. Counsel also stated, “[Y]ou have to look at the issue for which the evidence is offered____” Id. at 27H.
Because the Director refuses to cabin the “substantial compliance” analysis, we find the Director’s understanding of the “substantial compliance” test to be indistinguishable from the requirement in § 718.-204(c) that a medical judgment be documented and reasoned. Both analyses require a discretionary determination by the AU based on all the facts of the case. The touchstones of both appear to be the reliability and documentation of the medical judgment expressed in the report not on the general reliability of the report. Accordingly, under the Director’s analysis, an AU would determine that a report was not in substantial compliance and thus exclude it only if the medical judgment was also not documented and reasoned and thus not capable of establishing total disability under § 718.204(c)(4).
Following the Director’s analysis, we therefore return to the same regulatory rule that we reached without any consideration of agency deference. Even according to the Director: (1) the AU may credit a judgment in a medical report if it is documented and reasoned; (2) the AU has broad discretion to make this determination on all the facts of a case; and (3) § 718.104 operates essentially as a guide. Despite our disagreement with the path the Director follows in reaching this rule, we therefore feel reasonably confident that we implement the same result.
We recognize that we may not fully comprehend the Director’s views and that the Secretary may wish to clarify the regulations to express his policy more clearly. We trust that the Secretary, if he considers the matter, will not propose a rigid rule which will require the AU to discredit helpful medical evidence solely in the interest of administrative convenience but rather will attempt to strike a balance between the goals of administrability and reliability.
We note also that the gap between form and substance may be bridged if the OWCP, pursuant to its obligation to develop the record, see 20 C.F.R. § 725.401 (1987), attempts to discover the documentation and reasoning behind noncomplying reports. When Congress passed the portion of 30 U.S.C. § 902(f)(1)(D) which mandates that decisions be made on the basis of all the relevant evidence, the Senate report indicated Congress’ desire that “evidence be sought” by the government “as is necessary to assure a decision on the claim consistent with the remedial nature of this legislation.” Senate Report, supra note 5, reprinted at 2322. The report specifically pointed to the importance of evidence of the “miner’s physician.” Id., reprinted at 2318.
Rather than simply discrediting a medical report that does not contain sufficient documentation, the OWCP might therefore be advised to investigate the doctor’s reasons for finding total disability. By presenting that evidence to the AU, the OWCP could help insure that hearings concentrate on the reliability of doctor’s judgments not on the technical sufficiency of the doctor’s report.
IV. Statutory Requirements
Before applying our construction of the regulations to the facts of this case, we must consider Mangifest’s statutory arguments. With the support of Amici and the BRB, Mangifest has claimed that a “mandatory” construction of this regulation would violate 30 U.S.C. § 923(b) of the Black Lung Act and 5 U.S.C. § 556 of the APA. Under our middle-ground construction of the regulations, § 718.104 is mandatory (although not rigid): an AU may accept a medical judgment in a report that does not comply with § 718.104, but an AU must determine the reliability of that judgment with reference to the documentation requirements of that section.
We are not certain whether Mangifest’s rejection of a “mandatory” quality standard applies to the kind of middle-ground construction of the regulations we have accepted. The arguments in Mangifest’s and the Amici’s briefs and in the BRB’s decision focus primarily on the Director’s more rigid construction of § 718.104. Their reasoning is sufficiently unclear that we cannot be sure whether Mangifest, Amici and the BRB reject any mandatory quality standard or only a rigid one. Because these briefs and the BRB opinion do claim to reject a “mandatory” regulation, however, and because § 718.104 is mandatory in our view, we believe we must consider whether our construction of the
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
REDFIELD v. NEW YORK CENT. R. CO.
No. 10398.
Circuit Court of Appeals, Eighth Circuit.
March 4, 1936.
As Modified on Denial of Rehearing April 17, 1936.
Further Rehearing Denied May 13, 1936.
E. H. Gamble, of Kansas City, Mo. (S. L. Trusty and Edward E. Pugh, both of Kansas City, Mo., on the brief), for appellant.
Albert S. Marley, of Kansas City, Mo. (John S. Marley, of Kansas City, Mo., on the brief), for appellee.
Before STONE, SANBORN, and THOMAS, Circuit Judges.
STONE, Circuit Judge.
After this court filed its opinion remanding this case, appellee filed a petition for rehearing. We have painstakingly examined the matters urged therein. We have no doubt as to the verity of the result reached in our former opinion. However, a careful scrutiny of our opinion has led us to conclude that a rule of law announced therein was erroneously stated and would probably be troublesome in the retrial of this case and also as a general precedent. This error is so interwoven into several paragraphs in the latter part of the opinion that, for purposes of clarity, we withdraw the entire opinion, and substitute therefor the following, which consists of much of the earlier opinion with the changes deemed advisable.
In a personal injury action by appellant, the court sustained a demurrer to an amended petition on the ground that it showed plaintiff guilty of contributory negligence. Declining to plead further, judgment was entered for defendant (appellee) and plaintiff appeals.
The outline of this petition is as follows: Plaintiff was a strong, able-bodied man in good condition with long experience in boarding moving trains and vehicles. He was a passenger on defendant’s train— his passage being from Cleveland to Chicago. He was riding in a day coach at the rear of the train which was otherwise made up of pullmans — all platforms being vestibuled. The train stopped en route at Toledo about 1 o’clock a. m. When the train stopped, the day coach was a “few cars” distant from a walkway leading into the station. Many persons alighted from the coach and pullmans and some went into the station. Plaintiff alighted (leaving his ticket and luggage in the car) and walked along the platform to the walkway leading into the station. At that point, he talked with an employee of defendant who, in re-spouse to inquiry, told him the train would remain thirty minutes. He then started into the station, but because another train pulled in and stopped between him and his train, he went back around this train to the platform at the side of his train to go to his car — this about- sixteen minutes after his train stopped. When he was yet several car lengths from his car, the train started without warning. At this time the vestibtdes of the intervening pullmans were closed. Realizing that the train was moviug, that his ticket and luggage were on it, and that he could not enter by the pull-mans, plaintiff became confused and greatly excited and hurried toward the rear so as to get to his coach while the train was moving slowly and the vestibule door thereto was still open. As his car approached, the vestibule was open and, just before he attempted to board, a trainman entered there and went into the coach. While excited and fearing his “luggage and valuable belongings” would be carried on and he left behind, he endeavored to board the train which was moving not more than five miles an hour and could have been safely boarded by him “when there was a jerk or lunge forward of said train without warning” which caused him to lose his hold and fall, occasioning the injuries in suit.
1 • . 3 f There were five claimed grounds of negligence, each of which was alleged to be an independent proximate and efficient cause from which plaintiff fell from the steps of said coach. They are as follows: (1) lhat defendant, without reasonable warning to plaintiff, started and kept the tiam m motion, when it knew or by exercise of due care could have known ’ that plaintiff was not on the train, could not get on at the pullman vestibules, and would “make all reasonable effort to get back on said day coach if the vestibule was left open.” (2) That defendant started .the train before the time its employee had erroneously informed plaintiff it would be started, “when by the exercise of due care it could have known” that he was not on the train, could board only at the day coach, and would make every reasonable effort to board the coach while it was in motion and with the vestibule open. (3) That defendant started the train without reasonable warning, after giving the plaintiff the above erroneous information and when “by due care it could have known” he was not in the day coach, could not board any other portion of the train, and that so to start the train would likely create an emergency to plaintiff and throw him “into a stale of excitement and confusion” in which he would make all reasonable effort to board at the lighted and open day coach vestibule — that because of this situation, plaintiff did become excited and confused and attempted to board the train at that vestibule and was caused to fall. (4) That without warning the train was caused to jerk suddenly, when defendant knew plaintiff had gotten off of and “by the exercise of due care under the circumstances could have known” that he had not re-entered the day coach, could not board the train elsewhere, would likely get upon the steps of said coach while the vestibule was lighted and open, thus putting himself in a position of being caused to fall by any sudden jerk or sudden m-crease of speed of the train. (5) That defendant started the train when it knew plaintiff had gone toward the station about fifteen minutes before the train started and knew “or by due care could have known” that he was not on the coach when it start-ed and knew he could not board the train elsewhere and knew that by so starting the train under the circumstances and with plaintiff’s luggage and ticket in the coach he would be thrown into a state of excitement and confusion and seized with a very strong impulse to get on the coach when Jt ca^e al Hghted up with vestibule «and especially if somc one got on said CQadl ^ si ht of and while it was ncar„ him_that such excitement, confusion, and impulse came tQ plaintiff without <w for calm deliberaüon and choice t0 abandon said train„ and under thc influence thereof and seejng. a man so g-et on ahead 0f him, he got on the steps and “was so thrown and caused to fall therefrom.”
Allegations as to specific negligence must be judged, as to their sufficiency, by reference to the situation as outlined in the petition because it must be assumed, on demurrer, that such situation is true as he states it. That situation is, briefly, that knowing (actually or constructively) that plaintiff was not on the train and that, by starting the train without warning before it had told plaintiff it would be started and by leaving but one vestibule open and lighted at the rear of-the train, defendant imposed upon plaintiff an unexpected situation which it knew (actually or constructively) would result in his excitement and confusion and where he would be faced with a decision for quick action between attempting the natural action of trying to board the moving train at the only available place or not doing so; that, so placed and considering the slow speed, it was reasonable for him to think and he did think he could safely do this; that while in the attempt, the train gave a sudden jerk or acceleration causing him to fall. In this situation, the only wrongful acts of defendant are: (1) Through starting the train without warning, knowingly creating a situation which would naturally induce plaintiff to attempt to board the day coach, and (2) suddenly jerking or suddenly increasing the speed while he was so doing. Obviously, the former standing alone would have resulted in no injury because it was the jerk or increase of speed which was necessary, under the allegations, to cause the fall and without which the position of peril on the steps would, have been harmless. It is really the combination of placing in peril and of the harmful act while in that position which expresses defendant’s fault. While we are not prepared to accept some of the specific acts of alleged negligence as being sufficient or as being properly set out, yet we think this stated a cause of action in so far as negligence of defendant is concerned, and the trial court did not find otherwise.
The demurrer to this petition was general in its terms, to wit, “that the facts alleged * * * are not sufficient to constitute a cause of action against this defendant.” In sustaining the demurrer, the trial court said:
“Plaintiff knew that the train was in motion when he attempted to board it. In Palen v. Wheelock et al., 13 F.(2d) 34, loc. cit. 36, the Eighth Circuit Court of Appeals, in deciding a similar case, where the accident occurred in the state of Illinois, said:
“ ‘Undertaking to board a train while it is in motion, proceeding out of a station with quickly increasing speed, and with the trap door closed down over the steps is a negligent act per se in the absence of circumstances which excuse the act.’
“The Court cited many cases in support of this doctrine. The court particularly quoted from Solomon, Administratrix, v. Manhattan R. Co., 103 N.Y. 437, 9 N.E. 430, 432, 57 Am.Rep. 760, as follows:
“ ‘It is, we think, the general rule of law, established by the decisions in this and other states * * * that the boarding or alighting from a moving train is presumably and generally a negligent act per se; and that, in order to rebut this presumption, and justify a recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger was, by the act of the defendant, put to an election between alternate dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created, which interfered, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.’
“The petition in this case lacks an averment which would rebut- the presumption of negligence on the part of the plaintiff or that in any way would justify him in attempting to board a moving train.”
The first issue here is whether the law of the forum or that of the place of occurrence (Ohio) controls in determining the existence vel non of contributory negligence per se. Appellee contends for the law of Ohio while appellant insists this is a liability at common law, as to which the jurisdiction of the trial court was co-ordinate with and not subject to the courts of Ohio. In a sense, both of these opposed positions are correct. In Young v. Masci, 289 U.S. 253, 258, 53 S.Ct. 599, 601, 77 L.Ed. 1158, 88 A.L.R. 170, the court said: “Liability for a tort depends upon the law of the place of the injury.” Such law is either written (Constitutions or statutes) or unwritten (judicial decision). The written law of a state is what the highest court of the state construes it to be and such construction is accepted by federal courts whether such law control torts (Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170) or other matters (see citations in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, at pages 530 and 531, 48 S.Ct. 404. at pages 407 and 408, 72 L.Ed. 681, 57 A.L.R. 426). But “for the discovery of common-law principles applicable in any case, investigation is not limited to the decisions of the courts of the state in which the controversy arises. State and federal courts go to the same sources for evidence of the existing applicable rule. The effort of both is to ascertain that rule. * * * As respects the rule of decision to be followed by federal courts, distinction has always heen made between statutes of a state and the decisions of its courts0on questions of general law. The applicable rule sustained by many decisions of this court is that, in determining questions of general law, the federal courts, while inclining to follow the decisions of the courts of the state in which the controversy arises, are free to exercise' their own independent judgment.” Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 529, 48 S.Ct. 404, 407, 72 L.Ed. 681, 57 A.L.R. 426. As instances of the rule last above quoted, the court in that opinion (276 U.S. 518, at pages 530 and 531, 48 S.Ct. 404, at pages 407 and 408, 72 L.Ed. 681, 57 A.L.R. 426) cites four negligence cases, among others. Also see Snare & Triest Co. v. Friedman, 169 F. 1, 10, 40 L.R.A.(N. S.) 367 (C.C.A.3), and Chesko v. Delaware & Hudson Co., 218 F. 804, 806 (C.C.A.3). The result of the above rules is that this court must determine for itself the rule as to this common-law contributory negligence.
The common law is, as to federal courts, the same in all states. In Palen v. Wheelock, 13 F.(2d) 34, 36, this court said: “Undertaking to board a train while it is in motion, proceeding out of a station with quickly increasing speed, and with the trap door closed down over the steps is a negligent act per se in the absence of circumstances which excuse the act.” This statement includes two important elements (rapidly increasing speed and closed trap door — as to latter see Norfolk & A. Terminal Co. v. Rotolo, 191 F. 4, at page 8 (C.C.A.4), not here present but, even with such inclusion, it is stated that such act is per se negligence only with the qualification “in the absence of circumstances which excuse the act.” Later in the opinion and evidently with approval, the court quotes from Solomon v. Manhattan R. Co., 103 N.Y. 437, 9 N.E. 430, 57 Am.Rep. 760, to the effect that:
“The boarding or alighting from a moving train is presumably and generally a negligent act per se, and that in order to rebut this presumption and justify a recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger was, by the act of the defendant, put to an election between alternative dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.”
This quotation from the Solomon Case was entirely appropriate to the fact situation before this court in the Palen Case where the quotation occurred. It seems clear that the present petition had in mind this rule thus announced in the quotation from the Solomon Case. The petition is within that rule — at least the portion “that something was done or said, * * * or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.”
In this matter our concern is not with negligence of defendant, but with contributory negligence of plaintiff. We are not here interested in the duties of defendant to plaintiff, but the duty of plaintiff to himself as affecting the defendant. From that viewpoint, the allegations of the amended petition must be examined and determined. The situation of the plaintiff when he sought to board the day coach is revealed in this petition as follows. Plaintiff, a strong able-bodied man, experienced in boarding moving trains, dismounts at a way station leaving his ticket and valuable luggage in the car. Before leaving the vicinity of the train, he inquires of an employee standing near the train and is told the train will remain there for thirty minutes. He then proceeds toward the station to procure refreshments. While so doing, he observes that another train has come in and stopped between him and his train. Thereupon he changes his mind and returns around that train to the station platform alongside his train on the way to his coach which is several cars away at the rear of the train. Without warning, his train starts about fourteen minutes before the time he has been informed it would leave. That this unexpected happening operating on him under these conditions and in this situation caused him to become confused and greatly excited. In this state of mind he attempted to board the train between two pullmans near him, but finding the vestibule closed he hurried toward the rear of the train so as to get aboard his coach if that vestibule was not closed. That just before this coach reached. him, a trainman boarded there and passed into the coach leaving the vestibule open. That the train was going slowly — about five miles an hour — when the open vestibule reached him. Then, thinking he could safely board the train and acting with reasonable care, he took hold of the hand iron with his right hand and put his left foot on the car step and, as he straightened up and was placing his other foot and grasping the othér handhold with his left hand, he was thrown by a sudden j erk or by a sudden acceleration of speed.
It seems to us that these are allegations which, if proven, would bring plaintiff within the quotation from the Solomon Case (made in the Palen Case) “that something was done or said, * * * or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.”
The situation here does not require and we expressly refrain from examining or determining whether there is a presumption of contributory negligence arising from the bare fact that a person attempts to board a moving train. What we do determine is that even if there be such presumption, this plaintiff has pleaded matters which, if supported by evidence, would justify submitting to a jury the issue of contributory negligence. Where persons are suddenly confronted with unusual conditions, their conduct must be judged having in mind the natural and actual effect upon them of the situation thus created and existing. Such conditions are “surrounding circumstances” to be considered in determining whether their acts have been reasonably careful. Union Pac. Ry. Co. v. McDonald, 152 U.S. 262, 281, 282, 14 S.Ct. 619, 38 L.Ed. 434; Vigil v. Atchison, T. & S. F. Ry. Co., 261 F. 313, 316 (C.C.A.8) ; National Life Ins. Co. v. McKenna, 226 F. 165, 168 (C.C.A;8); Vascacillas v. Southern Pac. Co., 247 F. 8, 12 (C.C.A.9).
The judgment is reversed and the case remanded with instructions to set aside the judgment and grant a new trial.'
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Carolyn BRADLEY and Michael Bradley, infants, by Minerva Bradley, their mother and next friend, et al., Appellees, v. The SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, et al., Appellant.
No. 71-1774.
United States Court of Appeals,. Fourth Circuit.
Heard March 7, 1972, Oct. 2, 1972.
Decided Nov. 29, 1972.
George B. Little, Richmond, Va. (John H. O’Brion, Jr., James K. Cluverius, and Browder, Russell, Little & Morris, Richmond, Va., and Conrad B. Mattox, Jr., City Atty., for City of Richmond, on brief), for appellant.
Louis R. Lucas, Memphis, Tenn. (Jack Greenberg, James Nabrit, III, Norman J. Chachkin, New York City, James R. Olphin and M. Ralph Page, Richmond, Va., on brief), for appellees.
Section III of the opinion, dealing with the application of Section 718 to the proceedings, before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, RUSSELL and FIELD, Circuit Judges (BUTZNER, Circuit Judge, being disqualified) sitting en banc.
Other parts of the cause before WINTER, CRAVEN and RUSSELL, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This appeal challenges an award of attorney’s fees made to counsel for plaintiffs in the school desegregation suit filed against the School Board of the City of Richmond, Virginia. Though the action has been pending for a number of years, the award covers services only for a period from March, 1970, to January 29,1971. It is predicated on two grounds: (1) that the actions taken and defenses entered by the defendant School Board during such period represented unreasonable and obdurate refusal to implement clear constitutional standards; and (2) apart from any consideration of obduracy on the part of the defendant School Board since 1970, it is appropriate in school desegregation cases, for policy reasons, to allow counsel for the private parties attorney’s fees as an item of costs. The defendant School Board contends that neither ground sustains the award. We agree.
We shall consider the two grounds separately.
I.
This Court has repeatedly declared that only in “the extraordinary case” where it has been “ ‘found that the bringing of the action should have been unnecessary and was compelled by the school board’s unreasonable, obdurate obstinacy’ or persistent defiance of law”, would a court, in the exercise of its equitable powers, award attorney’s fees in school desegregation cases. Brewer v. School Board of City of Norfolk, Virginia (4th Cir. 1972) 456 F.2d 943, 949. Whether the conduct of the School Board constitutes “obdurate obstinacy” in a particular case is ordinarily committed to the discretion of the District Judge, to be disturbed only “in the face of compelling circumstances”. Bradley v. School Board of City of Richmond, Virginia (4th Cir. 1965) 345 F.2d 310, 321. A finding of obduracy by the District Court, like any other finding of fact made by it, should be reversed, however, if “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co. (1948) 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746; Wright-Miller, Federal Practice and Procedure, Vol. 9, p. 731 (1971). We are convinced that the finding by the District Court of “obdurate obstinacy” on the part of the defendant School Board in this case was error.
Fundamental to the District Court’s finding of obduracy is its conclusion that the litigation, during the period for which an allowance was made, was unnecessary and only required because of the unreasonable refusal of the defendant School Board to accept in good faith the clear standards already established for developing a plan for a non-racial unitary school system. This follows from the pointed statements of the Court in the opinion under review that, “Because the relevant legal standards were clear it is not unfair to say that the litigation (in this period) was unnecessary”, and that, “When parties must institute litigation to secure what is plainly due them, it is not unfair to characterize a defendant’s conduct as obstinate and unreasonable and as a perversion of the purpose of adjudication, which is to settle actual disputes.” At another point in its opinion, the Court uses similar language, declaring that “the continued litigation herein (has) been precipitated by the defendants’ reluctance to accept clear legal direction, * * It would appear, however, that these criticisms of the conduct of the Board, upon which, to such. a large extent, the Court’s award rests, represent exercises in hindsight rather than appraisal of the Board’s action in the light of the law as it then appeared. The District Court itself recognized that, during this very period when it later found the Board to have been unreasonably dilatory, there was considerable uncertainty with reference to the Board’s obligation, so much so that the Court had held in denying plaintiffs’ request for mid-school year relief in the fall of 1970, that “it would not be reasonable to require further steps to desegregate * * giving as its reason: “Because of the nearly universal silence at appellate levels, which the Court interpreted as reflecting its own hope that authoritative Supreme Court rulings concerning the desegregation of schools in major metropolitan systems might bear on the extent of the defendants’ duty.” In fact, in July, 1970, the Court was writing to counsel that, “In spite of the guidelines afforded by our Circuit Court of Appeals and the United States Supreme Court, there are still many practical problems left open, as heretofore stated, including to what extent school districts and zones may or must be altered as a constitutional matter. A study of the cases shows almost limitless facets of study engaged in by the various school authorities throughout the country in attempting to achieve the necessary results.” The District Court had, also, earlier defended the School Board’s request of a stay of an order entered in the proceedings on August 17, 1970, stating: “Their original (the School Board’s) requests to the Fourth Circuit that the matter lie in abeyance were undoubtedly based on valid and compelling reasons, and ones which the Court has no doubt were at the time both appropriate and wise, since defendants understandably anticipated a further ruling by the United States Supreme Court in pending cases; * * Earlier in 1970, too, the Court had taken note of the legal obscurity surrounding what at that time was perhaps the critical issue in the proceeding, centering on the extent of the Board’s obligation to implement desegregation with transportation. Quoting from the language of Chief Justice Burger in his concurring opinion in Northcross v. Board of Education of Memphis, Tenn. City Schools, (1970) 397 U.S. 232, 237, 90 S.Ct. 891, 25 L.Ed.2d 426, the District Court observed that there are still practical problems to be determined, not the least of which is “to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court.” In fact, the District Court had during this very period voiced its own perplexity, despairingly commenting that “no real hope for the dismantling of dual school systems (in the Richmond school system) appears to be in the offing unless and until there is a dismantling of the all Black residential areas.” At this time, too, as the District Court pointed out, there was some difficulty in applying even the term “unitary school system”. In summary, it was manifest in 1970, as the District Court had repeatedly stated, that, while Brown and other cases had made plain that segregated schools were invalid, and that it was the duty of the School Board to establish a non-racial unitary system, the practical problems involved and the precise standards for establishing such a unitary system, especially for an urbanized school system — which incidentally were the very issues involved in the 1970 proceedings — had been neither resolved nor settled during 1970; in fact, the procedures are still matters of lively controversy. It would seem, therefore, manifest that, contrary to the premise on which the District Court proceeded in its opinion, the legal standards to be followed by the Richmond School Board in working out an acceptable plan of desegregation for its system were not clear and plain at any time in 1970 or even 1971.
It is true, as the District Court indicates, that the Supreme Court in 1968 had, in Green v. County School Board (1968) 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, found “freedom-of-choice” plans that were not effective unacceptable instruments of desegregation, and that the defendant Board, following that decision, had taken no affirmative steps on its own to vacate the earlier Court-approved “freedom-of-choice” plan for the Richmond School system, or to submit a new plan to replace it. In Green, the Court had held that, “if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary nonracial school system, ‘freedom of choice’ must be held unacceptable.” In suggesting zoning, Green offered a ready and easily applied alternative to “freedom-of-choice” for a thinly populated, rural school district such as Old Kent, but other than denying generally legitimacy to freedom-of-choice plans, Green set forth few, if any, standards or benchmarks for fashioning a unitary system in an urbanized school district, with a majority black student constituency, such as the Richmond school system. In fact, a commentator has observed that “Green raises more questions than it answers”. Perhaps the School Board, despite the obvious difficulties, should have acted promptly after the Green decision to prepare a new plan for submission to the Court. Because of the vexing uncertainties that confronted the School Board in framing a new plan of desegregation, problems which, incidentally, the District Court itself finally concluded could only be solved by the drastic and novel remedy of merging independent school districts, and pressed with no local complaints from plaintiffs or others, it was natural that the School Board would delay. Mere inaction under such circumstances, however, and in the face of the practical difficulties as reflected in the later litigation, cannot be fairly characterized as obdurateness. Indeed the plaintiffs themselves were in some apparent doubt as to how they wished to proceed in the period immediately after Green and took no action until March, 1970. Even then they offered no real plan, contenting themselves with demanding that the School Board formulate a unitary plan, and with requesting an award of attorney’s fees. It is unnecessary to pursue this matter, however, since the District Court does not seem to have based its award upon the inaction of the School Board prior to March 10, 1970, but predicated its award on the subsequent conduct of the School Board.
The proceedings, to which this award applies, began with the filing by the plaintiffs of their motion of March 10, 1970, in which they asked the District Court to “require the defendant school board forthwith to put into effect a method of assigning children to public schools and to take other appropriate steps which will promptly and realistically convert the public schools of the City of Richmond into a unitary non-racial system from which all vestiges of racial segregation will have been removed; and that the Court award a reasonable fee to their counsel to be assessed as costs.” With the filing of this motion, the Court ordered the defendant School Board to “advise the Court if it is their position that the public schools of the City of Richmond, Virginia are being operated in accordance with the constitutional requirements to operate unitary schools as enunciated by the United States Supreme Court.” It added that, should the defendant School Board not contend that its present operations were in compliance, it should “advise the Court the amount of time” needed “to submit a plan.” Promptly, within less than a week after the Court issued this order, the School Board reported to the Court that (1) it had been advised that it was not operating “unitary schools in accordance with the most recent enun-ciations of the Supreme Court of the United States” and (2) it had requested HEW, and HEW had agreed, to make a study and recommendations that would “ensure” that the operation of the Richmond Schools was in compliance with the decisions of the Supreme Court. This HEW plan was to be made available “on or about May 1, 1970” and the Board committed itself to submit a proposed plan “not later than May 11, 1970”. A few days later, the District Court held a pre-trial hearing and specifically inquired of the School Board as to the necessity for “an evidentiary hearing” on the legality of the plan under which the schools were then operating. The defendant School Board candidly advised the Court that, so far as it was concerned, no hearing was required since it “admitted that their (its) freedom of choice plan, although operating in accord with this Court’s order of March 30, 1966, was operating in a manner contrary to constitutional requirements.” The District Court characterizes this concession by the School Board as “reluctantly” given, and its finding of reluctance at this early stage in the proceeding is an element in the District Court’s conclusion that the School Board has been obdurate. The record, however, provides no basis for this characterization of the conduct of the School Board. The School Board had manifested no reluctance to concede that its existing plan of operation did not comply with Green. When called on by the Court for a response to plaintiffs’ motion, it had acted with becoming dispatch to enlist the assistance of that agency of Government supposed to have expertise in the area of school desegregation and charged by law with the duty of assisting school districts with such problems. Every action of the School Board at this stage could be said to be reasonably calculated to facilitate the progress of the proceedings and to lighten the burdens of the Court. This conclusion is supported by the fact that what the Board did was apparently found acceptable and helpful by both the Court and the plaintiffs. Neither contended that the proposed time-table was dilatory or that the use of HEW was an inappropriate agency to prepare an acceptable plan. As a matter of fact, the utilization of the services of HEW under these circumstances was an approved procedure at the time, one recommended by courts repeatedly to school districts confronted with the same problem as the Richmond schools.
On May 4, 1970, HEW submitted to the School Board its desegregation plan, prepared, to quote HEW, in response to the Board’s own “expressed desire to achieve the goal of a unitary system of public schools and in accordance with our interpretation of action which will most soundly achieve this objective.” In formulating its plan, HEW received no instructions from the School Board, “Except to try our best to meet the directive of the Court Order and they gave me the Court Order.” There were no meetings of the School Board and HEW “until the plan had been developed in almost final form.” Manifestly, the Board acted throughout the period when HEW was preparing its plan, in utmost good faith, enjoining HEW “to meet the directive” of the Court and relying on that specialized agency to prepare an acceptable plan. The Board approved, With a slight, inconsequential modification, the plan as prepared by HEW and submitted it to the Court on May 11, 1970. The District Court faults the Board for submitting this plan, declaring that the plan “failed to pass legal muster because those who prepared it were limited in their efforts further to desegregate by self-imposed restrictions on available techniques” and emphasizing that its unacceptability “should have been patently obvious in view of the opinion of the United States Court of Appeals for the Fourth Circuit in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d (138) (4th Cir. 1970), which had been rendered on May 26, 1970.” The failure to use “available techniques” such as “busing and satellite zonings” and whatever “self-imposed limitations” may have been placed on the planners were not the fault of the School Board but of HEW, to whom the School Board, with the seeming approval of the Court and the plaintiffs, had committed without any restraining instructions the task of preparing an acceptable plan. Moreover, at the time the plan was submitted to the Court by the School Board, Swann had not been decided by this Court. And when the Court disapproved the HEW plan, the Board proceeded in good faith to prepare on its own a new plan that was intended to comply with the objectives stated by the Court.
The Court did find some fault with the Board because, “Although the School Board had stated, as noted, that the free choice system failed to comply with the Constitution, producing as it did segregated schools, they declined to admit during the June (1970) hearings that this segregation was attributable to the force of law (transcript, hearing of June 20, 1970, at 322)” and that as a result, “the plaintiffs were put to the time and expense of demonstrating that governmental action lay behind the segregated school attendance prevailing in Richmond”. This claim of obstruction on the part of the Board is based on the latter’s refusal to concede, in reply to the Court’s inquiry, “that free choice did not work because it was de facto segregation”. It is somewhat difficult to discern the importance of determining whether the “free choice” plan represented “de facto segregation” or not: It was candidly conceded by the School Board that “free choice”, as applied to the Richmond schools, was impermissible constitutionally, and this concession was made whether the unacceptability was due to “de facto” segregation or not. In a school system such as that of Richmond, where there had been formerly de jure segregation, Green imposed on the School Board the “duty to eliminate racially identifiable schools even where their preservation results from educationally sound pupil assignment policies.” The School Board’s duty was to eliminate, as far as feasible, “racially identifiable schools” in its system. The real difficulty with achieving this result was that, whatever may have been the reasons for its demographic and residential patterns, there was, as the Court later reluctantly recognized, no practical way to achieve a racially balanced mix, whatever plan of desegregation was adopted. With a school population approximately 65 per cent black, it was not possible to avoid having schools that would be heavily black.
The constitutional obligation thus could, in that setting, only have as its goal the one stated by the District Court, i. e., “to the extent feasible within the City of Richmond.” Indeed, it was the very intractability of the problem of achieving a “viable racial mix” that prompted the Court to suggest in July, 1970, that it might be appropriate for the defendant School Board to discuss with the school officials of the contiguous counties the feasibility of consolidation of the school districts, “all of which may tend to assist them in their obligation”.
The Court’s finding of obstruction particularly centers on the substitute plan which the School Board proposed on July 23, 1970, in accordance with the Court’s previous directive. It found two objections to the plan. The objections are actually part of one problem, i.e., transportation. The first objection was that the plan did not require as much integration in the elementary grades as in the higher grades. Such a difference in treatment, however, the Court found had some support in both Swann and Brewer, An increase in the desegregation of the elementary grades, however, depended upon the purchase and use of a considerable amount of transportation equipment by the Board; and this was the basis of the second criticism that “the School Board had in August (1970) still taken no steps to acquire the necessary equipment.” The Court repeated this criticism with reference to the plaintiffs’ mid-term motion made in the fall of 1970 for an amendment of defendant’s approved interim plan which, for implementation, “required the purchase of transportation facilities which the School Board still would only say it would acquire if so ordered.” Yet at the very time when the action of the School Board in failing to buy buses was thus being found to be “unreasonably obdurate”, the Court itself was declaring on August 7, 1970, that “it seems to me it would be completely unreasonable to force a school system that has no transportation, and you all don’t have any to any great extent, to go out and buy new busses when the United States Supreme Court may say that is wrong.” Again, as late as January 29, 1971, the Court, in refusing to order the immediate implementation of a plan submitted by the plaintiffs, which “would require the acquisition of additional transportation facilities not then available”, found that “the possibility that forthcoming rulings (by the Supreme Court)” might make such acquisition unnecessary and a needless expense induced “the Court to decide that immediate reorganization of the Richmond system would be ‘unreasonable’ under Swann.” If the Court did not feel it was reasonable in January, 1971, to require the Board to purchase additional buses, it certainly cannot be said that, in the period of uncertainty in 1970, the failure of the School Board to propose such acquisition, justifies any charge of unreasonableness, much less obdurateness or action “in defiance of law” or taken in “bad faith”.
The conclusion of the District Court that the Board was “unreasonably obdurate”, it seems, was influenced by the feeling, repeated in a number of the Court’s opinions, that “Each move (by the Board) in the agonizingly slow process of desegregation has been taken unwillingly and under coercion.” The record, as we read it, though, does not indicate that the Board was always halting, certainly not obstructive, in its efforts to discharge its legal duty to desegregate; nor does it seem that the Court itself had always so construed the action of the Board. In June, 1970, the Court remarked, that, while not satisfied “that every reasonable effort has been made to explore” all possible means of improving its plan, it was “satisfied Dr. Little and Mr. Adams (the school administrators) have been working day and night diligently to do the best they could, the School Board too.” It may be that in the early years after Brown the School Board was neglectful of its responsibility, but, beginning in the middle of 1965, it seems to have become more active. Moreover, the promptness and vigor with which the Board adopted and pressed the suggestion of the Court that steps be considered in connection with a possible consolidation of the Richmond schools with those of Chesterfield and Henrico Counties must cast doubt upon any finding that the Board was unwilling to explore any avenue, even one of uncharted legality, in the discharge of its obligation. The Court wrote its letter suggesting a discussion with the other counties looking to such possible consolidation on July 6, 1970. The letter was addressed to the attorneys for the plaintiffs but a copy went to counsel for the School Board. Nothing was done by counsel for the plaintiffs as a result of this letter but on July 23, 1970, the Board moved the Court for leave to make the School Boards of Chesterfield and Henrico Counties parties and to serve on them a third-party complaint wherein consolidation of their school systems with that of the Richmond systems would be required. The Board thereafter took the “laboring oar” in that proceeding. Neither it nor its counsel has been halting in pressing that action, despite substantial local disapproval.
It is clear that the Board, in attempting to develop a unitary school system for Richmond during 1970, was not operating in an area where the practical methods to be used were plainly illuminated or where prior decisions had not left a “lingering doubt” as to the proper procedure to be followed. Even the District Court had its uncertainties. All parties were awaiting the decision of the Supreme Court in Swann. Before Swann was decided, however, the parties were engaged in an attempt to develop a novel method of desegregating the Richmond school system for which there was not at the time legal precedent. Nor can it be said that there was not some remaining confusion, at least at the District level, about the scope of Swann itself. The frustrations of the District Court in its commendable attempt to arrive at a school plan that would protect the constitutional rights of the plaintiffs and others in their class, are understandable, but, to some extent, the School Board itself was also frustrated. It seems to us unfair to find under these circumstances that it was unreasonably obdurate.
II.
The District Court enunciated an alternative ground for the award it made. It concluded that school desegregation actions serve the ends of sound public policy as expressed in Congressional acts and are thus actually public actions, carried on by “private-attorneys general,” who are entitled to be compensated as a part of the costs of the action. Specifically, it held that “exercise of equity power requires the Court to allow counsel’s fees and expenses, in a field in which Congress has authorized broad equitable remedies ‘unless special circumstances would render such an award unjust.’ ” Apparently, though, the District Court would limit the application of this alternative ground for the award to those situations where the rights of the plaintiff were plain and the defense manifestly without merit. This conclusion follows from the fact that the Court finds this right of an award only arose in 1970 and 1971, when it might be presumed from previous expressions in the opinion, the Court concluded that all doubts about how to achieve a non-racial unitary school system had been resolved, and any failure of a school system to inaugurate such a system was obviously in bad faith and in defiance of law. That follows from this statement made by way of preface to its exposition of its alternative ground:
“Passing the question of the appropriateness of allowing fees on the basis of traditional equitable standards, the Court is persuaded that in 1970 and 1971 the character of school desegregation litigation has become such that full and appropriate relief must include the award of expenses of litigation. This is an alternative ground for today’s ruling.”
If this is the basis for the Court’s alternative ground, it really does not differ from the rule that has heretofore been followed consistently by this Court that, where a defendant defends in bad faith or in defiance of law, equity will award attorney’s fees. The difficulty with the application of the Court’s alternative ground for an award on this basis, though, is its assumption that by 1970 the law on the standards to be applied in achieving a unitary school system had been clearly and finally determined. As we have seen, there was no such certainty in 1970; indeed it would not appear that such certainty exists today. And it is this very uncertainty that is the rationale of the decision in Kelly v. Guinn (9th Cir. 1972) 456 F.2d 100, 111, where the Court, citing both the District Court’s opinion involved in this appeal (53 F.R.D. 28), and Lee v. Southern Home Sites Corp. (5th Cir. 1970) 429 F.2d 290, 295-296 sustained a denial of attorney’s fees in a school integration case, because:
“First, there was substantial doubt as to the school district’s legal obligation in the circumstances of this case; the district’s resistance to plaintiffs’ demands rested upon that doubt, and not upon an obdurate refusal to implement clear constitutional rights. Second, throughout the proceedings the school district has evinced a willingness to discharge its responsibilities under the law when those duties were made clear.”
If, however, an award of attorney’s fees is to be made as a means of implementing public policy, as the District Court indicates in its exposition of its alternative ground of award, it must normally find its warrant for such action in statutory authority. Congress, however, has made no provision for such award in school desegregation eases. Legislation to such effect, included in a bill to assist in the integration of educational institutions,- was introduced in 1971 in Congress but it was not favorably considered. Moreover, in the Civil Rights Act of 1964, it expressly provided for such award in both the equal employment opportunity and the public accommodations sections but pointedly omitted to include such a provision in the public education section. In giving effect to this contrast in the several titles of the Civil Rights Act of 1964, and in affirming that any award of attorney’s fees in a school desegregation case must be predicated on traditional equitable standards, the Court in Kemp v. Beasley (8th Cir. 1965) 352 F.2d 14, 23, said:
“Congress by specifically authorizing attorney’s fees in Public Accommodation cases and not making allowance in school segregation cases clearly indicated that insofar as the Civil Rights Act is concerned, it does not authorize the sanction of legal fees in this type of action. The doctrine of Ex-pressio unium est exclusio alterius applies here and is dispositive of this contention.”
The same conclusion was reached in Monroe v. Board of Com’rs of City of Jackson, Tenn. (6th Cir. 1972) 453 F.2d 259, 262-263, note 1, where an award, though sustained, was sustained on the ground of “unreasonable, obdurate obstinacy” as enunciated in Bradley v. School Board of Richmond, Virginia (4th Cir. 1965) 345 F.2d 310, 321, and not as a vehicle for the enforcement of public policy. To the same effect is United States v. Gray, supra.
It is suggested that Mills v. Electric Auto-Lite (1970) 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, and Lee v. Southern Home Sites Corp. (5th Cir. 1971) 444 F.2d 143, sustain this alternative award as in the nature of a sanction designed to further public policy. Any reliance on Mills is “misplaced, however, because conferral of benefits, not policy enforcement, was the Mills Court’s stated justification for its holding.” 50 Tex.L.Rev. 207 (1971). In fact, the award in Mills was based on the same concept of benefit as was used to support the award in Trustees v. Greenough (1881) 105 U. S. 527, 26 L.Ed. 1157. 36 Mo.L.Rev. 137 (1971). Equally inapposite is Lee. Though filed under Section 1982, it was like unto, and, so far as relief was concerned, should be treated similarly as an action under Section 3612(c), 42 U.S.C., in which attorney’s fees are allowable. By this reasoning, the Court sought to bring the award within the umbrella of a parallel specific statutory authorization. There is no basis for such a rationale here.
If, • however, the rationale of Mills is to be stretched so as to provide a vehicle for establishing judicial power justifying the employment of award of attorney’s fees to promote and encourage private litigation in support of public policy as expressed by Congress or embodied in the Constitution, it will launch courts upon the difficult and complex task of determining what is public policy, an issue normally reserved for legislative determination, and, even more difficult, which public policy warrants the encouragement of award of fees to attorneys for private litigants who voluntarily take upon themselves the character of private attorneys-general. Counsel in environmental cases would claim such a role for their services. The protection of historical houses and monuments against the encroachment of highways has been cloaked within the mantle of public interest and it would be argued should receive the encouragement of an award. Consumers’ suits are clearly to be considered. Apportionment suits would justify awards under this theory. First Amendment rights are often spoken of as preferred constitutional rights. Attacks upon statutes infringing free speech would, under this theory, command an allowance. But it must be emphasized that whether the enforcement of Congressional purpose in all these cases commands an award of attorney's fees is a matter for legislative determination. And Congress has not. been reticent in expressing such purpose in those cases where it conceives that such special award is appropriate. In many instances, where Congress has enacted statutes designed to further public purpose, it has bulwarked their enforcement with provisions for the allowance of counsel fees to attorneys for private parties invoking such statutes; in other cases it has denied such awards. In some of the statutes authorizing such allowances, the award is, as in the statute involved in Newman v. Piggie Park Enterprises (1968) 390 U. S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263, either mandatory or practically so; in others it is discretionary and the granting of awards is generally made through the use of the same guidelines as motivate courts in making awards under the traditional equity rule. Should the courts, in those instances where Congress has failed to grant the right, review the legislative omission and sustain or correct the omission as the court’s judgment on public policy suggests? This, it seems to us, would be an unwarranted exercise of judicial power. After all, Courts should not assume that Congress legislates in ignorance of existing law, whether statutory or precedential. Accordingly, when Congress omits to provide specially for the allowance of attorney’s fees in a statutory scheme designed to further a public purpose, it may be fairly accepted that it did so purposefully, intending that the allowance of attorney’s fees in cases brought to enforce the rights there created or recognized should be allowed only as they may be authorized under the traditional and long-established principles as stated in Sprague v. Ticonic Bank (1939) 307 U. S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184. Such consideration, it would seem, was the compelling reason that prompted one commentator to offer the apt caveat that the determination of public policy as a predicate for such awards should be more safely left with Congress and not undertaken by the Courts. Thus in 50 Tex.L.Rev. 209 (1971), it is stated:
“The decision, (referring to Lee) however, sanctions excessive judicial discretion that may emasculate the general rule against fee awards and inject more unpredictability into the judicial process. The legislature should formulate a rule that would promote predictability and utilize the power inherent in fee allocation to pursue the goals it desires to achieve, one of which would be equal access to the courts.”
Even the author of the Note, The Allocation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev., 316, though sympathetic to the extension of Mills to cover awards of attorney’s fees in support of public policy, recognizes that a general policy, applicable to all cases, on the award of attorney’s fees should be adopted, concluding its review of the subject with this comment:
“Logically, one of two things must happen: either judicial discretion to grant fees on policy grounds will result in universal fee shifting from the successful party, or the courts will withdraw to the traditional position, denying any fee transfer without specific statutory authorization. Mills represents an uneasy half-way house between these two extremes.” (Page 336)
We find ourselves in agreement with the conclusion that if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress and not by the courts. This is especially true in school cases, where the guidelines are murky and where harried, normally uncompensated School Boards must tread warily their way through largely uncharted and shadowy legal forests in their search for an acceptable plan providing what the courts will hopefully decide is a unitary school system.
Accordingly, until Congress authorizes otherwise awards of attorney’s fees in school desegregation cases must rest upon the traditional equitable standards as stated in Bradley v. Richmond School Board (4th Cir. 1965) 345 F.2d 310, which provide ample scope for the award in appropriate cases.
III.
After the above opinion had been prepared but not issued, the Congress enacted Section 718 of the Emergency School Aid Act. The appellees promptly called to the Court's attention this Section, suggesting that it provided an alternative basis for the award made. They construed the reference in the Section to “final order” to embrace any appealable order dealing with any issue raised in a school desegregation case. Any order which had been appealed and was pending on appeal, unresolved, on the effective date of the Section (i. e., July 1, 1972), they argued, could provide a proper vehicle for an award under the Section.
Since this issue of the application of ¡Section 718 was raised simultaneously ’in a number of other pending appeals, it was determined to withhold the above opinion for the time being, and to consider en banc the reach of Section 718, as applied both to this case and to the other related appeals. Such en banc hearing has been had and the Court has concluded that Section 718 does not reach services rendered prior to June 30, 1972.
Were it to be construed as extending to any “final order,”.entered as “necessary to secure compliance,” and pending unresolved on the effective date of the Act (which is the plaintiffs’ construction of the sweep of the Section), such Section could not be used as a vehicle to validate this award. This is so because there was no “final order” pending unresolved on appeal on June 30, 1972, to which this award could attach. The only proceeding pending
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_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
Gregory MILANOVICH, et ux., Appellants, v. COSTA CROCIERE, S.P.A., et al., Appellees.
No. 90-7155.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 3, 1992.
Decided Feb. 4, 1992.
Allen M. Hutter, Washington, D.C., for appellants.
George Mencio, Jr., for appellees. Daniel S. Pearson, Miami, Fla., and Mitchell H. Stabbe, Washington, D.C., also entered appearances, for appellees.
Before WALD, SILBERMAN and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
Appellants Gregory Milanovich and Marjorie Koch-Milanovich appeal the grant of summary judgment to appellees Costa Cro-ciere, S.p.A., an Italian cruise line corporation, and Costa Cruises, Inc., a New York corporation serving as Costa Crociere’s general sales agent. For reasons given below, we vacate the judgment and remand for further proceedings on appellants’ claim.
I. Background
Appellants Gregory Milanovich and Marjorie Koch-Milanovich, a husband and wife residing in the District of Columbia, booked passage for a one-week Caribbean cruise on an Italian flag vessel owned by appellee Costa Crociere, S.p.A. The cruise disembarked from San Juan, Puerto Rico on February 6, 1988. On the morning of February 7, while the ship was in international waters, the deck chair upon which Mr. Mi-lanovich was sitting collapsed, allegedly causing him serious injury.
On December 13, 1988, the Milanoviches made a written demand for damages on appellee Costa Cruises, Inc. Three months later, on March 31, 1989, appellants filed a personal injury action in the United States District Court for the District of Columbia. The suit was filed one year and fifty-three days after the date of the accident. The cruise company promptly moved for summary judgment claiming that the suit was time-barred by a provision of the passage ticket establishing a one-year time limit for bringing personal injury actions. Appellants opposed summary judgment arguing that another provision of the ticket invoked Italian law as the “ruling law of the contract,” and that under Italian law the one-year limitation was unenforceable. They submitted uncontroverted expert testimony that under Articles 1341 and 1342 of the Italian Civil Code, provisions expressly referenced in the passage ticket, liability limiting provisions in certain kinds of “adhesion” contracts, of which a passenger ticket is one, are unenforceable against the non-drafting party unless that party gives specific written assent to such provisions. Without such written approval, they contended, the one-year limitation period in this case was unenforceable.
The district court disagreed. The court reasoned that federal maritime law governed this contract, and that under federal maritime choice-of-law rules, the governing law of the contract is determined by a “center of gravity” analysis, not by the contractual intent of the parties alone. Milanovich v. SJK Enterprises, Inc., 747 F.Supp. 1, 2 (D.D.C.1990). Because of the preponderance of U.S. contacts — appellants are U.S. citizens, the cruise was advertised in the U.S., the tickets were purchased and delivered in the U.S., and the ship left from and returned to a U.S. port — the court held that U.S. law, not Italian law, provided the rule of decision regarding the validity of the one-year limitation clause. Id. at 3. Applying U.S. law, the court found that this provision had been effectively incorporated into the contract and was legally enforceable.
In a supplemental memorandum and order, the district court considered, and rejected, appellants’ argument that the district court had failed to appreciate the significance of the Supreme Court’s decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), in which the Court enforced a contractual choice-of-forum clause in a maritime towage contract. The district court reasoned that
[i]t is doubtful if the Supreme Court anticipated an extension of the rule of The Bremen so far from the [commercial] circumstances of that case as to allow a passenger ticket for a pleasure cruise to dictate, as a matter of contract alone, the terms and conditions upon which a shipowner would be liable to its passengers for personal injury_ The proposition may be tested by asking whether, were the situation reversed and the limitations clause less favorable to the Mila-noviches under Italian law than under the applicable provision of U.S. maritime law, would it nevertheless be enforced under the rule of The Bremen in the circumstances of this case.
Id. at 5, 92 S.Ct. at 1911 (emphasis in original). Implicitly answering that question in the negative, the district court reiterated that American law, not Italian law, governed this contract and that appellants’ suit was time-barred. On appeal, the Mila-noviches challenge the district court’s refusal to enforce the choice-of-law provision contained in their passage ticket.
II. Analysis
The Milanoviches’ cruise ticket is a maritime contract and thus the substantive law to be applied in this case is the general federal maritime law, including maritime choice-of-law rules. See Hodes v. S.N.C. Achille Lauro Ed Altri-Gestione, 858 F.2d 905, 909 & n. 2 (3d Cir.1988) (citing The Moses Taylor, 71 U.S. (4 Wall) 411, 427, 18 L.Ed. 397 (1886)), cert. dismissed, Hodes v. Lauro Line s.r.l., 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989); Siegelman v. Cunard White Star, 221 F.2d 189, 192-93 (2d Cir.1955). The question we ultimately face is whether a provision of that contract limiting the time for suit was validly incorporated and is legally enforceable. The resolution of those questions depends, however, on the body of contract law with which we examine the contract.
The contract contains a provision purporting to adopt Italian law as the law of the contract, but to follow that direction and use Italian contract law to decide whether the provision telling us to use Italian law is valid would obviously be “putting the barge before the tug.” DeNicola v. Cunard Line Ltd., 642 F.2d 5, 7 n. 2 (1st Cir.1981) (dicta). What law should govern whether a choice-of-law provision is a valid part of a maritime contract is a difficult question, but one we need not decide because both parties here have assumed that American contract law principles control. If the choice-of-law provision is enforceable, we will use the law that it selects to evaluate the enforceability of the remainder of the contract terms. Siegelman, 221 F.2d at 193 (examining American law initially to determine that a choice-of-law provision selecting English law is enforceable, and then using English law to interpret a provision limiting the time for suit); DeNicola, 642 F.2d at 7 n. 2 (dicta).
Under American law, contractual choice-of-law provisions are usually honored. Restatement (Second) of Conflict of Laws § 187 (1971). This principle applies even when the choice-of-law clause is contained in a contract of adhesion, although courts typically scrutinize such contracts to prevent substantial injustice to the adherent. Id. comment b. Thus, in Siegelman v. Cunard White Star, 221 F.2d 189 (2d Cir.1955), the court enforced a choice-of-law provision in a cruise ship passage ticket where “there [did] not appear to be an attempt ... to evade American policy” and “there [was] no suggestion that English law [the stipulated law of the contract] is oppressive to passengers.” Id. at 195. See also Jansson v. Swedish American Line, 185 F.2d 212, 218 (1st Cir.1950) (noting that “when the parties contract with the law of some particular jurisdiction in view, the law of that jurisdiction will be applicable in determining the interpretation and validity of the contract”).
The district court here, however, ignored the choice-of-law clause, reasoning that The Bremen, in which the Supreme Court enforced a similar clause, was distinguishable because it involved commercial parties of equal bargaining strength. Appellees, in turn, argue that the district court properly disregarded the choice-of-law clause— a clause that they drafted and included in this adhesion contract — because a contractual choice-of-law clause is only one factor to be considered in a court’s choice-of-law analysis. Brief for Appellee at 14. We find neither argument persuasive.
First, while there are indeed statements by some district courts that a choice-of-law clause is only one factor in determining the applicable law, see, e.g., McQuillan v. “Italia” Societa Per Azione Di Navigazione, 386 F.Supp. 462, 468 (S.D.N.Y.1974) (dicta), aff'd, 516 F.2d 896 (2d Cir.1975); Pisacane v. Italia Societa Per Azioni Di Navigazione, 219 F.Supp. 424, 425 (S.D.N.Y.1963), they appear to express mainly the courts’ understandable reluctance to automatically enforce the terms of these adhesion contracts against the passenger. See Caruso v. Italian Line, 184 F.Supp. 862, 863 (S.D.N.Y.1960) (“[a]l-though a recital of the law governing the contract may be determinative in a proper case, it is here but one consideration in determining choice of law because its consensual nature is clearly fictitious”) (emphasis supplied); Mulvihill v. Furness, Withy & Co., 136 F.Supp. 201, 206 (S.D.N.Y.1955) (applying U.S. law where interpretation of limitation clause “involves important considerations of internal public policy”). While these concerns warrant heightened judicial scrutiny of choice-of-law provisions in passage tickets, they do not sanction their utter disregard, especially where there are no countervailing policies of the forum implicated and where it is the nondrafting party that seeks enforcement of the choice-of-law provision.
Second, the district court’s conclusion that the reasoning of The Bremen is limited to the commercial context has been undermined by the Supreme Court’s recent decision in Carnival Cruise Lines, Inc. v. Shute, — U.S. —, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), in which the Court extended the logic of The Bremen to contracts governing pleasure cruises. In Carnival Cruise, an injured cruise ship passenger filed suit in his home state despite a stipulation in the passage ticket requiring all suits to be filed in Florida. The Court recognized that the choice-of-forum clause was not the subject of bargaining, but nonetheless considered whether it was “reasonable” and therefore enforceable under American law. The Court noted that “forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness,” id. Ill S.Ct. at 1528, but concluded that this particular choice-of-forum clause was reasonable and that the plaintiff had failed to satisfy the “ ‘heavy burden of proof’ ” required to set aside the clause on grounds of inconvenience. Id. at 1528 (quoting The Bremen, 407 U.S. at 17, 92 S.Ct. at 1917).
Under The Bremen and Carnival Cruise, then, courts should honor a contractual choice-of-law provision in a passenger ticket unless the party challenging the enforcement of the provision can establish that “enforcement would be unreasonable and unjust,” “the clause was invalid for such reasons as fraud or overreaching,” or “enforcement would contravene a strong public policy of the forum in which suit is brought.” The Bremen, 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972); see also Carnival Cruise, 111 S.Ct. at 1528 (finding forum-selection clause reasonable, not the product of fraud, overreaching or bad faith on the part of defendant cruise ship company).
Appellees do not argue that enforcement of the choice-of-law provision would be unreasonable or unjust, or that they have been the victim of fraud, bad faith or overreaching; after all, appellees drafted the choice-of-law provision and included it in the form passage contract. Instead, appellees argue that a particular policy of the forum would be contravened by enforcement of the contractual choice-of-law clause. Under 46 U.S.C.App. § 183b(a), they say, it is unlawful
for the ... owner of any sea-going vessel ... transporting passengers ... from or between ports of the United States and foreign ports to provide ... a shorter period for ... the institution of suits on [claims for loss of life or bodily injury] than one year.
Appellees argue that this provision implicitly sanctions a maximum limitation period of one year and was enacted “to provide uniformity of treatment and predictability of outcome for American passengers” regardless of the nationality of the carrier. Enforcing a choice-of-law clause that will permit suit beyond one year from the date of the accident, appellees argue, would contravene this public policy. Brief of Appel-lees at 18-19.
The plain language of 46 U.S.C.App. § 183b, however, reveals that the provision seeks only to prevent time limitations of less than one year. Enforcing the choice-of-law clause here obviously does not contravene that policy. To the extent there is an affirmative forum policy regarding time bars to suit, it is embodied in 46 U.S.C. § 763a, which provides for a three-year statute of limitations for maritime torts. Enforcing the choice-of-law clause here would clearly not undermine that policy.
III. Conclusion
The Milanoviehes' passage ticket designates Italian law as the ruling law of the contract. Appellees, the parties opposing enforcement of that provision, have not demonstrated that the choice-of-law clause is unjust or unreasonable or that its enforcement would violate American public policy. We therefore see no reason to deny enforcement of this express provision of the Milanoviehes’ passage ticket. Under Italian law, as it was explained by appellants’ expert without contradiction by ap-pellees, the contract’s one-year limitation on suit is invalid, and thus appellants’ action was timely filed. The summary judgment of the district court is vacated and the case is remanded for further proceedings to adjudicate appellants’ personal injury claim.
So ordered.
. Appellants’ passage ticket came in a 13-page booklet, measuring 81/2 by 3‘/2 inches, setting out the terms and conditions of carriage. The following notice was printed on the front of the booklet in red letters against a white background:
IMPORTANT NOTICE
Each passenger should carefully examine this ticket, particularly the conditions on pages 2-10.
A similar notice appeared in the upper left hand corner of the actual ticket: "By accepting or using this ticket the passenger agrees to the terms and conditions appearing on pages 2-10 of Passage Ticket Booklet.”
Article 30, printed in small type on page 9 of the ticket, provided that ”[n]o action or proceeding against the Company for ... injury ... to the passenger shall be instituted, unless ... the action or suit ... is commenced within one year from the date when the ... injury occurred." Art. 35, printed on the next page of the ticket and entitled "RULING LAW OF THIS CONTRACT,” provided that "[tjhis passage ticket is subject to the Italian law.”
. The following passage, translated from the Italian, appeared on page 10 of the ticket immediately following Article 35's invocation of Italian law:
THE HOLDER OF THIS PASSAGE TICKET, DO [sic] HEREBY DECLARE TO THE EFFECTS AND UNDER PROVISIONS OF ARTT. 1341 AND 1342 OF THE ITALIAN CIVIL CODE IN FORCE, THAT HE IS AWARE AND ADHERES TO ALL CONDITIONS AND CLAUSES SET FORTH IN THIS PASSAGE TICKET CONTRACT AND THAT HE SPECIFICALLY APPROVES CLAUSES ... 30 ... and 35.
. Appellants also argued that even if enforceable, under Italian law the one-year limitation period was tolled by their demand letter. Because we find that the limitation period is not enforceable, we do not reach this question.
. The court reasoned that under U.S. law, liability limiting provisions in passenger cruise tickets are incorporated into the contract between the passenger and the cruise line if “the contents of the ticket ‘reasonably communicated’ the presence of the limitation term to the passenger against whom it might be invoked.” Milanovich, 747 F.Supp. at 3 (quoting Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir.1987)). Surveying the relevant case law, the court noted that
the general characteristics of those tickets held to be sufficiently communicative have included a boldface or otherwise distinguishable warning to the passenger to read the fine print; placement of this warning on the cover of the ticket booklet; repetition of the warning elsewhere; contrast between the warning and the background on which it is printed; and opportunity afforded the passenger to study the provisions of the ticket by which he is to be bound.
Id. Measured against these criteria, the court concluded that "the tickets given the plaintiffs here reasonably communicated that [they] contained information of which it was in their interest to be aware.” Id.
. In The Bremen, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the American and German parties to the contract stipulated that the English High Court of Justice would be the exclusive forum for any disputes relating to the contract. The Supreme Court recognized that the English court would apply English law and, in so doing, enforce provisions of the contract that an American court would not. Id. at 8, 13 n. 15, 92 S.Ct. at 1912, 1915 n. 15.
. Because we agree with appellants that the district court erred in refusing to enforce the contractual choice-of-law provision, we do not reach appellants’ alternative arguments that (1) the reference to Articles 1341 and 1342 of the Italian Civil Code in the ticket incorporated the requirement of those provisions that the limitation period be specifically approved and therefore the one-year limitation was invalid strictly as a matter of American contract law and (2) the passage ticket did not “reasonably communicate” to appellants the presence of the one-year limitation clause.
. As noted above, The Bremen involved a choice-of-forum clause, but the Supreme Court recognized that enforcing the provision would have the effect of subjecting the contract to foreign law. See supra note 5.
. Nor are we persuaded by appellees’ reliance on Hodes v. S.N.C. Achille Lauro Ed Altri-Gestione, 858 F.2d 905 (3d Cir.1988), DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981), and Lubick v. Travel Services, Inc., 573 F.Supp. 904 (D.V.I.1983), in which the courts applied American law despite the presence of choice-of-law provisions in the passage tickets. In neither Hodes nor DeNicola did the parties actually make the argument, as appellants do here, that the choice-of-law clauses should be enforced. Hodes, 858 F.2d at 909 n. 2 (noting that neither party has argued or presented evidence regarding Italian law); DeNicola, 642 F.2d at 7 n. 2 (noting that ‘‘neither party has offered proof of, or otherwise sought to rely on English law at any stage of this proceeding”). Thus, the fact that these courts applied American law is certainly not dispositive on the question of whether a choice-of-law provision in a passage ticket should be enforced.
In Lubick, the court appears to have ruled that choice-of-law clauses in passage tickets are per se unenforceable. 573 F.Supp. at 906. To the extent that Lubick does indeed stand for this proposition, we disagree.
. Of course, a preliminary question exists as to whether the choice-of-law clause was validly incorporated into the passage ticket. Under American maritime law, the terms and conditions in a passage ticket are deemed to be incorporated as long as they are "reasonably communicated" to the passenger. Hodes, 858 F.2d at 910; Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir.), cert. denied, 484 U.S. 852, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987); Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864 (1st Cir.1983); cf. Carnival Cruise, 111 S.Ct. at 1525 (noting that the passengers "essentially have conceded that they had notice of the forum-selection clause”). Appellees forcefully argue that the one-year limitation clause was “reasonably communicated” to appellants. Brief of Ap-pellees at 19-25. They thus necessarily concede that the choice-of-law clause, printed in identical type on the very next page of the ticket, was also "reasonably communicated” to appellants and was therefore validly incorporated into the passage ticket.
. The parties' choice of law is presumed to exclude reference to the choice-of-law rules of the selected jurisdiction. Restatement (Second) of Choice of Laws § 186 comment b, so we need not examine what law the Italian courts would apply under these circumstances.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_issuearea
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I
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
UNITED STATES NATIONAL BANK OF OREGON v. INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., et al.
No. 92-484.
Argued April 19, 1993
Decided June 7, 1993
Christopher J. Wright argued the cause for petitioners in both eases and filed a brief for petitioners in No. 92-507. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Wallace, Robert V. Zener, Jacob M. Lewis, William R Bowden, Jr., Ernest C. Barrett III, and Lester N. Scall. Kenneth L. Bachman, Jr., and Michael R. Lazerwitz filed briefs for petitioner in No. 92-484.
Ann M. Kappler argued the cause for respondents in both eases. With her on the brief were Donald B. Verrilli, Jr., and Nory Miller.
Together with No. 92-507, Ludwig, Comptroller of the Currency, et al. v. Independent Insurance Agents of America, Inc., et al., also on certiorari to the same court.
John J. Gill III, Michael F. Crotty, Richard M. Whiting, Leonard J. Rubin, and John S. Jackson filed a brief for the American Bankers Association et al. as amici curiae urging reversal.
Justice Souter
delivered the opinion of the Court.
The Comptroller of the Currency recently relied on a statutory provision enacted in 1916 to permit national banks located in small communities to sell insurance to customers outside those communities. These cases present the unlikely question whether Congress repealed that provision in 1918. We hold that no repeal occurred.
I
Almost 80 years ago, Congress authorized any national bank “doing business in any place the population of which does not exceed five thousand inhabitants... [to] act as the agent for any fire, life, or other insurance company.” Act of Sept. 7, 1916, 39 Stat. 753. In the first compilation of the United States Code, this provision appeared as section 92 of Title 12. See 12 U. S. C. § 92 (1926 ed.); see also United States Code editions of 1934, 1940, and 1946. The 1952 edition of the Code, however, omitted the insurance provision, with a note indicating that Congress had repealed it in 1918. See 12 U. S. C. § 92 (1952 ed.) (note). Though the provision has also been left out of the subsequent editions of the United States Code, including the current one (each containing in substance the same note that appeared in 1952, see United States Code editions of 1958, 1964, 1970, 1976, 1982, and 1988), the parties refer to it as “section 92,” and so will we.
Despite the absence of section 92 from the Code, Congress has assumed that it remains in force, on one occasion actually-amending it. See Gam-St. Germain Depository Institutions Act of 1982, § 403(b), 96 Stat. 1511; see also Competitive Equality Banking Act of 1987, § 201(b)(5), 101 Stat. 583 (imposing a 1-year moratorium on section 92 activities). The regulators concerned with the provision’s subject, the Comptroller of the Currency and the Federal Reserve Board, have likewise acted on the understanding that section 92 remains the law, see Brief for Federal Petitioners in No. 92-507, pp. 31-32; Brief for Petitioner in No. 92-484, pp. 26-28, and indeed it was a ruling by the Comptroller relying on section 92 that precipitated these cases.
The ruling came on a request by United States National Bank of Oregon (Bank), a national bank with its principal place of business in Portland, Oregon, to sell insurance through its branch in Banks, Oregon (population: 489), to customers nationwide. The Comptroller approved the request in 1986, interpreting section 92 to permit national bank branches located in communities with populations not exceeding 5,000 to sell insurance to customers not only inside but also outside those communities. See App. to Pet. for Cert, in No. 92-507, pp. 74a-79a. The Bank is the petitioner in the first of the cases we decide today; the Comptroller of the Currency, the Office of the Comptroller of the Currency, and the United States are the petitioners in the other.
Respondents in both cases are various trade organizations representing insurance agents. They challenged the Comptroller’s decision in the United States District Court for the District of Columbia, claiming the Comptroller’s ruling to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). Respondents argued, among other things, that the ruling was inconsistent with section 92, which respondents maintained permits national banks located in small communities to sell insurance only to customers in those communities. The District Court disagreed and granted summary judgment for the federal parties and the Bank, a defendant-intervenor, on the ground that the Comptroller’s interpretation was “rational and consistent with [section 92].” National Assn. of Life Underwriters v. Clarke, 736 F. Supp. 1162, 1173 (1990) (internal quotation marks and citation omitted). The District Court thought it “worth noting that this section no longer appears in the United States Code” as it “apparently was inadvertently repealed” in 1918; but because Congress, the Comptroller, and other courts have presumed its continuing validity, the court was content to assume that the provision exists “in proprio vigore,” meaning, we take it, of its own force. Id., at 1163, n. 2.
Respondents had not asked the District Court to rule that section 92 no longer existed, and they took the same tack before the Court of Appeals for the District of Columbia Circuit, merely noting in their opening brief that section 92 may have been repealed in 1918 and then stating that all the relevant players had assumed its validity. The Court of Appeals, nevertheless, directed the parties to be prepared to address the status of section 92 at oral argument, and after oral argument (at which respondents’ counsel declined to argue that the provision was no longer in force) ordered supplemental briefing on the issue. In their supplemental brief, respondents urged the court to decide the question, but took no position on whether section 92 was valid law. The Court of Appeals did decide the issue, reversing the District Court’s decision and remanding with instructions to enter judgment for respondents. The court found first that, though the parties had not on their own questioned the validity of section 92, the court had a “duty” to do so, Independent Ins. Agents of America, Inc. v. Clarke, 293 U. S. App. D. C. 403, 406, 955 F. 2d 731, 734 (1992); and, second, that the relevant statutes, “traditionally construed,” demonstrate that Congress repealed section 92 in 1918, id., at 407, 955 F. 2d, at 735. Judge Silberman, dissenting, would have affirmed without addressing the validity of section 92, an issue he thought was not properly before the court. Id., at 413-416, 955 F. 2d, at 741-744. The Court of Appeals denied respondents’ suggestion for rehearing en banc, with several judges filing separate statements. See 296 U. S. App. D. C. 115, 965 F. 2d 1077 (1992).
The Bank and the federal parties separately petitioned for certiorari, both petitions presenting the question whether section 92 remains in force and the Bank presenting the additional question whether the Court of Appeals properly addressed the issue. Because of a conflict on the important question whether section 92 is valid law, see American Land Title Assn. v. Clarke, 968 F. 2d 150, 151-154 (CA2 1992), cert. pending, Nos. 92-482, 92-645, we granted the petitions. 506 U. S. 1032 (1992). We now reverse.
II
Before turning to the status of section 92, we address the Bank’s threshold question, whether the Court of Appeals erred in considering the issue at all. Respondents did not challenge the validity of section 92 before the District Court; they did not do so in their opening brief in the Court of Appeals or, despite the court’s invitation, at oral argument. Not until the Court of Appeals ordered supplemental briefing on the status of section 92 did respondents even urge the court to resolve the issue, while still taking no position on the merits. The Bank contends that the Court of Appeals lacked the authority to consider whether section 92 remains the law and, alternatively, that it abused its discretion in doing so. There is no need to linger long over either argument.
“The exercise of judicial power under Art. Ill of the Constitution depends on the existence of a case or controversy,” and “a federal court [lacks] the power to render advisory opinions.” Preiser v. Newkirk, 422 U. S. 395, 401 (1975); see also Flast v. Cohen, 392 U. S. 83, 97 (1968). The Bank maintains that there was no case or controversy about the validity of section 92, and that in resolving the status of the provision the Court of Appeals violated the Article III prohibition against advisory opinions.
There is no doubt, however, that from the start respondents’ suit was the “pursuance of an honest and actual antagonistic assertion of rights by one [party] against another,” Muskrat v. United States, 219 U. S. 346, 359 (1911) (internal quotation marks and citation omitted), that “valuable legal rights... [would] be directly affected to a specific and substantial degree” by a decision on whether the Comptroller’s ruling was proper and lawful, Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 262 (1933), and that the Court of Appeals therefore had before it a real case and controversy extending to that issue. Though the parties did not lock horns over the status of section 92, they did clash over whether the Comptroller properly relied on section 92 as authority for his ruling, and “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,” Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991), even where the proper construction is that a law does not govern because it is not in force. “The judicial Power” extends to cases “arising under___the Laws of the United States,” Art. Ill, § 2, cl. 1, and a court properly asked to construe a law has the constitutional power to determine whether the law exists, cf. Cohens v. Virginia, 6 Wheat. 264, 405 (1821) (“[I]f, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend”) (Marshall, C. J.). The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory.
Nor did prudence oblige the Court of Appeals to treat the unasserted argument that section 92 had been repealed as having been waived. Respondents argued from the start, as we noted, that section 92 was not authority for the Comptroller’s ruling, and a court may consider an issue “antecedent to... and ultimately dispositive of” the dispute before it, even an issue the parties fail to identify and brief. Arcadia v. Ohio Power Co., 498 U. S. 73, 77 (1990); cf. Cardinal Chemical Co. v. Morton Int'l, Inc., ante, at 88-89, n. 9 (addressing a legal question as to which the parties agreed on the answer). The omission of section 92 from the United States Code, moreover, along with the codifiers’ indication that the provision had been repealed, created honest doubt about whether section 92 existed as law, and a court “need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it.” United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). While the Bank says that by initially accepting the widespread assumption that section 92 remains in force, respondents forfeited their right to have the Court of Appeals consider whether the law exists, “[tjhere can be no estoppel in the way of ascertaining the existence of a law,” South Ottawa v. Perkins, 94 U. S. 260, 267 (1877). In addressing the status of section 92, the Court of Appeals did not stray beyond its constitutional or prudential boundaries.
The Court of Appeals, accordingly, had discretion to consider the validity of section 92, and under the circumstances did not abuse it. The court was asked to determine under the APA whether the Comptroller’s ruling was in accordance with a statutory provision that the keepers of the United States Code had suggested was no longer in force, on appeal from a District Court justifying its reliance on the law by the logic that, despite its “inadverten[t] repea[l],” section 92 remained in effect of its own force. 736 F. Supp., at 1163, n. 2. After giving the parties ample opportunity to address the issue, the Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law. Cf. Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289 (1917). We need not decide whether the Court of Appeals had, as it concluded, a “duty” to address the status of section 92 (which would imply error in declining to do so), for the court’s decision to consider the issue was certainly no abuse of its discretion.
Ill
A
Though the appearance of a provision in the current edition of the United States Code is “prima facie” evidence that the provision has the force of law, 1 U. S. C. § 204(a), it is the Statutes at Large that provides the “legal evidence of laws,” § 112, and despite its omission from the Code section 92 remains on the books if the Statutes at Large so dictates. Cf. United States v. Welden, 377 U. S. 95, 98, n. 4 (1964); Stephan v. United States, 319 U. S. 423, 426 (1943) (per curiam). The analysis that underlies our conclusion that section 92 is valid law calls for familiarity with several provisions appearing in the Statutes at Large. This section provides the necessary statutory background.
The background begins in 1863 and 1864, when the Civil War Congress enacted and then reenacted the National Bank Act, which-launched the modern national banking system by providing for federal chartering of private commercial banks and empowering the newly created national banks to issue and accept a uniform national currency. Act of Feb. 25, 1863, ch. 58,12 Stat. 665; Act of June 3,1864, ch. 106,13 Stat. 99; see E. Symons, Jr., & J. White, Banking Law 22-25 (3d ed. 1991); see also 12 U. S. C. §38. In a section important for these eases, the National Bank Act set limits on the indebtedness of national banks, subject to certain exceptions. See §42,12 Stat. 677 (1863 Act); §36,13 Stat. 110 (1864 Act). Ten years later, Congress adopted the indebtedness provision again as part of the Revised Statutes of the United States, a massive revision, reorganization, and reenactment of all statutes in effeet at the time, accompanied by a simultaneous repeal of all prior ones. Rev. Stat. §§ 1-5601 (1874); see also Dwan & Feidler, The Federal Statutes — Their History and Use, 22 Minn. L. Rev. 1008, 1012-1015 (1938). Title 62 of the Revised Statutes, containing §§ 5133 through 5243, included the Nation’s banking laws, and, with a few stylistic alterations, the National Bank Act’s indebtedness provision became § 5202 of the Revised Statutes:
Sec. 5202. No association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
First. Notes of circulation.
Second. Moneys deposited with or collected by the association.
Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
Fourth. Liabilities to the stockholders of the association for dividends and reserved profits.
In 1913 Congress amended Rev. Stat. § 5202 by adding a fifth exception to the indebtedness limit. The amendment was a detail of the Federal Reserve Act of 1913 (Federal Reserve Act or 1913 Act), which created Federal Reserve banks and the Federal Reserve Board and required the national banks formed pursuant to the National Bank Act to become members of the new Federal Reserve System. Federal Reserve Act, ch. 6, 38 Stat. 251; see P. Studenski & H. Krooss, Financial History of the United States 255-262 (2d ed. 1963). The amendment came in § 13 of the 1913 Act, the first five paragraphs of which set forth the powers of the new Federal Reserve banks, such as the authority to accept and discount various forms of notes and commercial paper, including those issued by national banks. Federal Reserve Act, § 13,38 Stat. 263-264. This (subject to ellipsis) followed:
Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
Fifth. Liabilities incurred under the provisions of the Federal Reserve Act.
38 Stat. 264. The next and final paragraph of § 13 authorized the Federal Reserve Board to issue regulations governing the rediscount by Federal Reserve banks of bills receivable and bills of exchange. Ibid.
In 1916, Congress enacted what became section 92. It did so as part of a statute that amended various sections of the Federal Reserve Act and that, in the view of respondents and the Court of Appeals, also amended Rev. Stat. §5202. Act of Sept. 7, 1916, 39 Stat. 752 (1916 Act). Unlike the 1913 Act, the 1916 Act employed quotation marks, and those quotation marks proved critical to the Court of Appeals’s finding that the 1916 Act placed section 92 in Rev. Stat. § 5202. After amending § 11 of the Federal Reserve Act, the 1916 Act provided, without quotation marks,
[t]hat section thirteen be, and is hereby, amended to read as follows:
Ibid. Then followed within quotation marks several paragraphs that track the first five paragraphs of § 13 of the 1913 Act, the modifications generally expanding the powers of Federal Reserve banks. After the quotation marks closed, this appeared:
Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: “No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
“First. Notes of circulation.
“Second. Moneys deposited with or collected by the association.
“Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
“Fourth. Liabilities to the stockholders of the association for dividends and reserve profits.
“Fifth. Liabilities incurred under the provisions of the Federal reserve Act.
“The discount and rediscount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act, shall be subject to such restrictions, limitations, and regulations as may be imposed by the Federal Reserve Board.
“That in addition to the powers now vested by law in national banking associations organized under the laws of the United States any such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State....
“Any member bank may accept drafts or bills of exchange drawn upon it having not more than three months’ sight to run, exclusive of days of grace, drawn under regulations to be prescribed by the Federal Reserve Board by banks or bankers in foreign countries or dependencies or insular possessions of the United States for the purpose of furnishing dollar exchange as required by the usages of trade in the respective countries, dependencies, or insular possessions. Such drafts or bills may be acquired by Federal reserve banks in such amounts and subject to such regulations, restrictions, and limitations as may be prescribed by the Federal Reserve Board....”
39 Stat. 753-754 The second-to-last paragraph just quoted is the first appearance of the provision eventually codified as 12 U. S. C. § 92. After the quotation marks closed, the 1916 Act went on to amend § 14 of the Federal Reserve Act, introducing the amendment with a phrase not surrounded by quotation marks and then placing the revised language of § 14 within quotation marks. 39 Stat. 754. The pattern was repeated for amendments of §§ 16, 24, and 25 of the Federal Reserve Act. Id., at 754-756.
The final relevant statute is the War Finance Corporation Act, ch. 45, 40 Stat. 506 (1918 Act), which in §20 amended Rev. Stat. § 5202 by, at least, adding a sixth exception to the indebtedness limit:
Sec. 20. Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows:
“Sec. 5202. No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
“Sixth. Liabilities incurred under the provisions of the War Finance Corporation Act.”
40 Stat. 512.
B
The argument that section 92 is no longer in force, adopted by the Court of Appeals and pressed here by respondents, is simply stated: the 1916 Act placed section 92 in Rev. Stat. § 5202, and the 1918 Act eliminated all of Rev. Stat. § 5202 except the indebtedness provision (to which it added a sixth exception), thus repealing section 92. Our discussion begins with the first premise of that argument, and there it ends, for we conclude with petitioners that the 1916 Act placed section 92 not in Rev. Stat. § 5202 but in § 13 of the Federal Reserve Act; since the 1918 Act did not touch § 13, it did not affect, much less repeal, section 92.
A reader following the path of punctuation of the 1916 Act would no doubt arrive at the opposite conclusion, that the statute added section 92 to Rev. Stat. § 5202. The 1916 Act reads, without quotation marks, Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows. 39 Stat. 753. That phrase is followed by a colon and then opening quotation marks; closing quotation marks do not appear until several paragraphs later, and the paragraph that was later codified as 12 U. S. C. § 92 is one of those within the opening and closing quotation marks. The unavoidable inference from familiar rules of punctuation is that the 1916 Act placed section 92 in Rev. Stat. § 5202.
A statute’s plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning. Along with punctuation, text consists of words living “a communal existence,” in Judge Learned Hand’s phrase, the meaning of each word informing the others and “all in their aggregate tak[ing] their purport from the setting in which they are used.” NLRB v. Federbush Co., 121 F. 2d 954, 957 (CA2
1941). Over and over we have stressed that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” United States v. Heirs of Boisdoré, 8 How. 113,122 (1849) (quoted in more than a dozen cases, most recently Dole v. Steelworkers, 494 U. S. 26, 35 (1990)); see also King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991). No more than isolated words or sentences is punctuation alone a reliable guide for discovery of a statute’s meaning. Statutory construction “is a holistic endeavor,” United Savings Assn, of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365,371 (1988), and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.
Here, though the deployment of quotation marks in the 1916 Act points in one direction, all of the other evidence from the statute points the other way. It points so certainly, in our view, as to allow only the conclusion that the punctuation marks were misplaced and that the 1916 Act put section 92 not in Rev. Stat. §5202 but in §13 of the Federal Reserve Act.
The first thing to notice, we think, is the 1916 Act’s structure. The Act begins by stating [tjhat the Act entitled “Federal reserve Act,” approved [19IS], be, and is hereby, amended as follows. 39 Stat. 752. It then contains what appear to be seven directory phrases not surrounded by quotation marks, each of which is followed by one or more paragraphs within opening and closing quotation marks. These are the seven phrases (the numbers and citations in brackets are ours):
[1] At the end of section eleven insert a new clause as follows:
“...” [39 Stat. 752]
[2] That section thirteen be, and is hereby, amended to read as follows:
..” [39 Stat. 752]
[3] Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows:
..” [39 Stat. 753]
[4] That subsection (e) of section fourteen, be, and is hereby, amended to read as follows:
..” [39 Stat. 754]
[5] That the second paragraph of section sixteen be, and is hereby, amended to read as follows:
[39 Stat. 754]
[6] That section twenty-four be, and is hereby, amended to read as follows:
“..” [39 Stat. 754]
[7] That section twenty-five be, and is hereby, amended to read as follows:
[39 Stat. 755]
The paragraph eventually codified as 12 U. S. C. § 92 is one of several inside the quotation marks that open after the third phrase, which “hereby amended” Rev. Stat. §5202, and that close before the fourth, and the argument that the 1916 Act placed section 92 in Rev. Stat. § 5202 hinges on the assumption that the third phrase is a directory phrase like each of the others. But the structure of the Act supports another possibility, that the third phrase does not introduce a new amendment at all. Of the seven phrases, only the third does not in terms refer to a section of the Federal Reserve Act. Congress, to be sure, was free to take a detour from its work on the Federal Reserve Act to revise the Revised Statutes. But if Congress had taken that turn, one would expect some textual indication of the point where once its work on Rev. Stat. § 5202 was done it returned to revision of the Federal Reserve Act. None of the directory phrases that follow the phrase mentioning Rev. Stat. § 5202, however, refers back to the Federal Reserve Act. The failure of the fourth phrase, for example, to say something like “subsection (e) of section fourteen of the Federal Reserve Act of 1913 is hereby amended” suggests that the Congress never veered from its original course, that the object of the 1916 Act was singlemindedly to revise sections of the Federal Reserve Act, and that amending the Revised Statutes was beyond the 1916 law’s scope.
Further evidence that the 1916 Act amended only the Federal Reserve Act comes from the 1916 Act’s title: An Act To amend certain sections of the Act entitled “Federal reserve Act,” approved December twenty-third, nineteen hundred and thirteen. During this era the titles of statutes that revised pre-existing laws appear to have typically mentioned each of the laws they revised. See, e. g., Act of Sept. 26, 1918, ch. 177, 40 Stat. 967 (“An Act to amend and reenact sections four, eleven, sixteen, nineteen, and twenty-two of the Act approved December twenty-third, nineteen hundred and thirteen, and known as the Federal reserve Act, and sections fifty-two hundred and eight and fifty-two hundred and nine, Revised Statutes”). Cf. ch. 6, 38 Stat. 251 (“Federal Reserve Act”). Absent a comprehensive review it is impossible to know the extent of exceptions to this general rule, if any, and we would not cast aside the 1916 Act’s punctuation based solely on the Act’s title. Nevertheless, the omission of the Revised Statutes from the 1916 Act’s title does provide supporting evidence for the inference from the Act’s structure, that the Act did not amend Rev. Stat. § 5202. Cf. INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 189 (1991) (titles within a statute “can aid in resolving an ambiguity in the legislation’s text”).
One must ask, however, why the 1916 Act stated that Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows, 39 Stat. 753, if it did not amend Rev. Stat. §5202. The answer emerges from comparing the 1916 Act with the statute that all agree it did amend, the Federal Reserve Act of 1913, and noticing that the identical directory phrase appeared in § 13 of the 1913 Act, which did amend Rev. Stat. §5202. As enacted in 1913, §13 contained several paragraphs granting powers to Federal Reserve banks; it then included a paragraph amending Rev. Stat. § 5202 (by adding a fifth exception to the indebtedness limit for “Pliabilities incurred under the provisions of the Federal Reserve Act”), a paragraph that began Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows. 38 Stat. 264. The 1916 Act, in the portion following the phrase introducing a revision of § 13 of the 1913 Act, proceeded in the same manner. It contained several paragraphs granting powers to Federal Reserve banks, paragraphs that are somewhat revised versions of the ones that appeared in the 1913 Act, followed by the phrase introducing an amendment to Rev. Stat. § 5202 and then the language of Rev. Stat. § 5202 as it appeared in the 1913 Act. The similarity of the language of the 1916 and 1913 Acts suggests that, in order to amend § 13 in 1916, Congress restated the 1913 version of §13 in its entirety, revising the portion it intended to change and leaving the rest unaltered, including the portion that had amended Rev. Stat. § 5202.
In defending the Court of Appeals’s contrary conclusion that the 1916 Act amended Rev. Stat. §5202, respondents argue that any other reading would render meaningless the language in the 1916 Act that purports to amend that section of the Revised Statutes. But the 1916 Congress would have had good reason to carry forward that portion of the 1913 Act containing Rev. Stat. § 5202, even though in 1916 it did not intend to amend it any further. The 1916 Act revised § 13 of the 1913 Act by completely restating it with a mixture of old and new language (providing that § 13 is amended “to read as follows,” 39 Stat. 752), and a failure to restate Rev. Stat. § 5202 with its 1913 amendment could have been taken to indicate its repeal.
The final and decisive evidence that the 1916 Act placed section 92 in § 13 of the. Federal Reserve Act rather than Rev. Stat. §5202 is provided by the language and subject matter of section 92 and the paragraphs surrounding it, paragraphs within the same opening and closing quotation marks. In the paragraph preceding section 92, the 1916 Act granted the Federal Reserve Board authority to regulate the
discount and rediscount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act....
39 Stat. 753 (emphasis added). “[Tjhis Act” must mean the Federal Reserve Act, since it was §13 of the Federal Reserve Act that granted banks the authority to discount and rediscount. Use of “this Act” in the discount-and-rediscount paragraph is powerful proof
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
Garrett Brock TRAPNELL, Plaintiff-Appellant, v. James D. RIGGSBY; Jerry Williford; Ronald Thompson; J. Brown and David Dalcher, Defendants-Appellees.
No. 79-1856.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 14, 1980.
Decided May 27, 1980.
Rehearing and Rehearing In Banc Denied Aug. 29,1980.
Larry Nyhan, Law Student; Allen E. Shoenberger, Chicago, 111., for plaintiff-appellant.
Theodore J. MacDonald, Asst. U. S. Atty., East St. Louis, 111., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
CASTLE, Senior Circuit Judge.
Plaintiff-appellant Trapnell, an inmate at the federal prison in Marion, Illinois filed this suit seeking both injunctive and monetary relief for infringement of his rights under the First Amendment. The defendants-appellees are officials and employees at the prison. The district court submitted the matter to a magistrate for evidentiary hearings and proposed findings, and subsequently adopted the magistrate’s recommendation that Trapnell’s requests for relief be denied. Trapnell appeals the decision of the district court. There are two issues presented for review: (1) whether the current prison regulations governing prisoner receipt of photographs of nude and semi-nude women are constitutionally valid; and (2) whether Trapnell is entitled to damages for official acts taken pursuant to earlier guidelines governing the receipt of photographs. We hold that the current standards are valid and that Trapnell is not entitled to any monetary relief. Accordingly, we affirm the decision of the district court.
I.
Trapnell currently is an inmate at Marion and has been there since 1975. He has studied art during his imprisonment and spends part of his free “cell” time painting. The inmates at Marion are, generally, sentenced to long terms of imprisonment and are considered assaultive in nature. During the period prior to January 18, 1978 the prison’s mail regulations stated that “[p]hotographs should meet the standard of decency and must include the individual’s name on the back of the photograph.” Policy Statement MI 7300.1, dated April 1, 1976, Part 3(e); Policy Statement MI 7300.-1A, dated February 1, 1977, Part 3(e). Trapnell’s claims for monetary relief are based on the rejection, under this regulation, of three sets of photographs. Two of these sets, rejected by officials in October and November of 1976, depicted female acquaintances of Trapnell. The subjects in the rejected photos were nude and semi-nude. The final group of photographs upon which this suit is based, the only commercially released photos rejected by Marion officials, were ordered by Trapnell from Peter Gowland. All of the photographs ordered from Gowland, who is a commercial photographer, were contained in catalogues which Trapnell received from Gowland. The catalogues included photos of nude and semi-nude women and were sent to Trapnell pursuant to an inquiry about “figure studies.” Trapnell was allowed to receive the catalogues; the regulation in question was limited to photographs. Trapnell selected and ordered thirty-six photographs from the catalogues, sending $88.80 with the order. In November, 1976 the photos were sent to the prison and rejected. There were no marks or stamps affixed to the Gowland photos to demonstrate that they indeed had been commercially published and distributed. Trapnell filed this suit in May, 1977 following denial of his requests for administrative relief.
During the course of this litigation the prison has promulgated new guidelines governing the receipt of the photographs. The parties have agreed that the claims for injunctive and declaratory relief contained in Trapnell’s complaint will apply to the new guidelines, which are still in effect. We will review the earlier regulations only as they relate to Trapnell’s claims for damages.
II.
We will first review the validity of the standards now in use at Marion. The current standards, in contrast to the regulations under which the photographs were initially rejected, set out carefully written and objective guidelines governing the receipt of photographs. The new regulation, MI 7300.1B(f) provides:
f. Nude and Pornographic Photographs.
(1) Nude photographs are defined as any photograph exposing the nipples of the breasts, buttocks, pubic hair and genitalia of a female and buttocks, pubic hair and genitalia of a male. This includes exposure through “see through” materials.
(2) Pornographic photographs are defined as photographs depicting acts of fornication, felattio [sic] and/or sodomy.
Inmates will not be allowed to receive or have in their possession photographs as described above unless the photographs are received as a part of a publication approved under the provisions of Bureau of Prisons Policy Statement 7300.42D, and/or the photographs have been published for commercial use (postcards, etc.). Such photographs must have some identifying marking or publication label to distinguish them as published for commercial use.
The distinction between photographs published for commercial use and original photographs intended for individual viewing must be made to maintain the security and orderly running of the institution consistent with the Bureau of Prisons mandate to provide for the safekeeping of the inmate population. Those persons who pose for photographs to be published for commercial use are aware that viewing of such photographs will be widespread; whereas persons who pose for original photographs may be doing so only for select viewers, such as inmate wives and girlfriends posing for one particular inmate. These types of intimate photographs are considered highly emotionally charged items for an inmate to have in his possession. If such photographs were viewed by other inmates, conflicts or assaults are likely to result. Unfortunately, even in the most secure prison setting, intentional or inadvertent viewing of such photographs cannot be prevented. Since this population is primarily long-term offenders with assaultive patterns of behavior and considered to have a high propensity toward violence, regulations must be established in this area for the safekeeping of both staff and inmates.
Inmates will not be able to receive or have in their possession photographs which depict sadistic acts, homosexual acts, beastiality, [sic] and sexual acts with children, regardless if the photograph has been published for commercial use or not. This regulation is needed as these types of photographs tend to increase anxiety, aggression and sexual arousal, thus threatening the orderly running of the institution.
We hold that the current regulations of Marion are constitutionally acceptable. The policy “furthers one or more of the substantial governmental interests of security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). The officials have adequately demonstrated that the regulations further the substantial interests of security and order. The defendants proved, to the satisfaction of the magistrate in the proceedings below, that “the propensity for violence is increased by the possession of such photos.” Magistrate’s Report and Recommendations at 6. This conclusion is supported by the “highly emotionally charged” nature of the photographs and the assaultive background of Marion’s inmates. Id. Prison officials must be allowed “[s]ome latitude in anticipating the probable consequences of allowing certain speech in a prison environment.” Procunier v. Martinez, 416 U.S. at 414, 94 S.Ct. at 1812. We note the Supreme Court’s admonition that “Responsible prison officials must be permitted to take reasonable steps to forestall such a threat [of violent confrontation], and they must be permitted to act before the time when they can compile a dossier on the eve of a riot.” Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 132-33, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (case involving First Amendment associational rights).
Moreover, the governmental interest furthered here is not an attempt “to eliminate unflattering or unwelcome opinions.” Procunier v. Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. Although the regulations are related to the content of the photos, the prison is not attempting to take a moral stance on the propriety of pictures of nude and semi-nude women. The prison is, in fact, unconcerned with whether the prisoners have or obtain photos of nude and semi-nude women. Such materials are sold at the prison commissary, are shown to the prisoners in the form of sexually explicit films, and can be sent to prisoners in the form of commercially released photographs. Indeed, the prison’s Chief of Classification and Parole testified that if a prisoner’s wife were to have a picture commercially released and published, the published photographs would be acceptable under the regulation. Transcript of Hearing Before Magistrate at 39. Rather than attempt to suppress expression per se, the regulation is an attempt to diminish the possibility that, when certain photos are in the possession of inmates, those photos will be the cause of violence between the inmates. We note that each of the photographs that Trapnell ordered from Gowland was selected from Gowland’s catalogues, which catalogues Trapnell was allowed to receive through the prison mail system.
Finally, the regulation is sufficiently narrow in scope and is “no greater than is necessary or essential to the protection of the particular governmental interest involved.” Procunier v. Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. Under these regulations prison officials are not entitled “to apply their own personal prejudices and opinions as standards for prisoner mail censorship.” Id. at 415, 94 S.Ct. at 1812. Instead, these regulations are a narrowly drawn and carefully limited response to a valid security problem faced by officials. The distinction between photographs which have been released for commercial distribution and those photos which have not been so released is a reasonable attempt to exclude photographs of women with whom inmates have an emotional attachment. Nor do the labeling requirements impose an impermissible burden on commercially released photos. See, e. g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (regulation requiring letters from inmates’ attorneys to be marked as coming from attorneys was “entirely appropriate” if such correspondence was to receive special treatment, 418 U.S. at 574-77, 94 S.Ct. at 2983-85). In view of the limited goal and scope of these regulations and, “in the absence of prohibitions far more sweeping than those involved here,” Bell v. Wolfish, 441 U.S. 520, 551, 99 S.Ct. 1861, 1880, 60 L.Ed.2d 447 (1979), we conclude that these regulations are “reasonable ‘time, place and manner’ regulations . . . necessary to further significant governmental interests, and are permitted.” Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) (citations omitted), quoted in Bell v. Wolfish, 441 U.S. at 552, 99 S.Ct. at 1881.
III.
Trapnell also challenges the conclusion, reached by both the magistrate and the district court, that he is not entitled to damages for the defendants’ actions under the earlier standard. Trapnell seeks $1,000,000. in compensatory damages; this amount includes the $88.80 paid for the rejected Gowland photographs. The magistrate determined that although the prior policy was overly broad, it was implemented in good faith and that under Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) the defendants were entitled to immunity from liability. The magistrate also concluded that Trapnell had not demonstrated that the named defendants were personally responsible for any constitutional violations which may have occurred under the earlier standard. In light of our agreement with the decision on the issue of immunity, we find it unnecessary to decide whether Trapnell adequately demonstrated the responsibility of the named defendants.
An initial question involves the basis of Trapnell’s claim for damages. The pro se complaint based this claim upon both the First Amendment and the Civil Rights Acts, 42 U.S.C. § 1981 et seq. However, Trapnell has neither alleged nor proved any facts that would bring this suit within the scope of the Civil Rights Act: there have been no claims that Trapnell was discriminated against due to his race, that any of the defendants have acted under color of state law, or that there has been a conspiracy within the meaning of 42 U.S.C. § 1985 against Trapnell. Accordingly, Trapnell cannot bring his suit under the Civil Rights Acts. Walker v. Blackwell, 360 F.2d 66, 67 (5th Cir. 1966); Mead v. Parker, 464 F.2d 1108, 1111 (9th Cir. 1972).
This is not to say that Trapnell is without a cause of action. The Supreme Court, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 338, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that there is a cause of action for damages for a violation of Fourth Amendment rights by federal agents. Several courts of appeals, applying Bivens, have held that a violation of First Amendment rights by federal officials gives rise to a cause of action for damages. Dellums v. Powell, 566 F.2d 167, 194-95 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3147, 57 L.Ed.2d 1161, rehearing denied, 439 U.S. 886, 99 S.Ct. 234, 58 L.Ed.2d 201 (1978); Paton v. LaPrade, 524 F.2d 862, 869-71 (2d Cir. 1975); Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392, 1393 (6th Cir. 1975) (per curiam). Accordingly, we will entertain Trapnell’s suit as one brought directly under the First Amendment.
IV.
Trapnell’s initial argument on the issue of immunity is that the defendants failed to plead official immunity as a defense and cannot now raise the issue. However, there was evidence presented before the magistrate which went to the defendants’ good faith and to the issue of official immunity. Additionally, Trapnell’s objection to the magistrate’s report discussed the magistrate’s finding of immunity. We will therefore consider the issue of immunity as having been tried by the implied consent of the parties. F.R.Civ.P. 15(b); Bradford Audio Corp. v. Pious, 392 F.2d 67, 73-74 (2d Cir. 1968). See also Federal Savings & Loan Ins. Corp. v. Hogan, 476 F.2d 1182 (7th Cir. 1973); Wagner v. United States, 573 F.2d 447, 452 (7th Cir. 1978).
Trapnell’s next claim is that the defendants lacked the good faith necessary for official immunity to be granted. The standard to determine whether a government official is entitled to a limited good-faith immunity is the same for both federal and state officials, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and requires that officials act with both “subjective” and “objective” good faith. Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). Thus, in Wood the Court held that:
a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury to the student.
Id. at 322, 95 S.Ct. at 1001.
This rationale was applied to prison officials in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), where the Court stated that:
Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm.
Id. at 562, 98 S.Ct. at 860. Since Trapnell does not challenge the magistrate’s finding that the defendants acted with subjective good faith, the issue presented is whether the defendants acted “with such disregard of . [the plaintiff’s] clearly established constitutional rights that [their] action cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1001.
Trapnell contends that under Aikens v. Jenkins, 534 F.2d 751 (7th Cir. 1976), Marion’s earlier guidelines governing the receipt of photographs were clearly illegal. Aikens was decided in April, 1976 and Trapnell’s photographs were rejected in October and November of 1976. Therefore, according to Trapnell, the officials knew or should have known that the censorship of the photos was in clear disregard of Trapnell’s established constitutional rights and the defendants are not entitled to immunity.
The regulation reviewed in Aikens provided, inter alia, that:
Periodicals of a sexual nature or which contain sexually-oriented material which, when taken as a whole, appear to be designed primarily to arouse sexual drives, cultivate sensual perception to sell or gain reader interest, or otherwise tend to appeal to the effective [sic] prurient interest in sex, are not approved. Photographs or paintings of nudes in a publication do not, per se, preclude the publication from being permitted in the institution, if the photos or paintings are supportive or incidental to a theme not designed primarily to arouse sexual drives.
534 F.2d at 756 (italics added in Aikens opinion). In striking down the italicized portion of the regulation, the court held that the stricken provision prohibited far more than was necessary for the protection of any substantial governmental interests. The court discussed the range of materials already prohibited under the first sentence of the regulation, which the plaintiffs did not challenge. The court also noted that the state could “deny prisoners access to materials that are not obscene, if it can establish that doing so furthers a governmental interest protectible under Procunier v. Martinez.” Id. at 756, n.4.
Aikens does not demonstrate that Trapnell had a “clearly established” right to the photos involved in this case. The Ai kens court’s willingness to allow prison officials to prohibit non-obscene materials demonstrates that a regulation comparable to the earlier Marion guidelines could, under certain circumstances, be constitutionally acceptable. See Part II, supra. Although Marion’s earlier guidelines were inartfully drawn, Trapnell has not demonstrated that the rejection of the photographs violated any of his clearly established constitutional rights. Nor does the fact that the defendants acted pursuant to the regulations’ broad grant of discretion alter this conclusion. The unchallenged portion of the guidelines in Aikens endowed officials with discretion to decide whether materials appeared to have been “designed primarily to arouse sexual drives” or tended “to appeal to the effective [sic] prurient interest in sex.” 534 F.2d at 756. Additionally, the regulations reviewed in Aikens had never been subjected to a narrowing interpretation or construction by the relevant officials and the court was in the “peculiar position” of reviewing the regulations only as written. Id. at 753. In the present case it appears that Marion’s earlier regulations were consistently construed as restrictions upon the ability of prisoners to receive photos of nude and semi-nude personal acquaintances. Thus, the decision in Aikens is an insufficient basis for ruling that the defendants are not entitled to a limited immunity for their actions pursuant' to Marion’s earlier guidelines.
We are aware of, and repeat, the admonition set forth in Little v. Walker, 552 F.2d 193 (7th Cir. 1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978). Prison officials “cannot hide behind a claim that the particular factual predicate in question has never appeared in haec verba in a reported opinion. If the application of settled principles in this factual tableau would inexorably lead to a conclusion of unconstitutionality, a prison official may not take solace in ostrichism.” 552 F.2d at 197. In the present case we believe that the defendants, in good faith, applied regulations which were, in various ways, different than the regulations struck down in Aikens. Accordingly, the defendants are entitled to immunity from liability.
For these reasons, the decision of the district court is
AFFIRMED.
. Of additional assistance in evaluating the validity of these guidelines is the Government’s explanation of what sort of “identifying mark or publication label” is required. During oral arguments before this Court, counsel for the Government maintained that the current policy did not require a particular type of stamp or label. Instead, the regulations merely seek to have photographs “stamped to somehow differentiate . . . [between photographs of] the people that didn’t want [the photos] disseminated . [from] those that didn’t care.”
. Trapnell also relies on Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) and Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) to demonstrate that the defendants acted in disregard of clearly established rights. Procunier, although an extremely important case regarding censorship of prisoner correspondence, does not necessarily establish that Trapnell had a constitutional right to receive the rejected photos. Nor does Guajardo, which was decided over a year after Trapnell filed his suit, support Trapnell’s claims.
. In an affidavit given by defendant Williford soon after the filing of this lawsuit (while the earlier guidelines were still in effect), Williford considered the guidelines to be limitations on the receipt of photos of nude and semi-nude friends and wives. Additionally, Trapnell testified before the magistrate that after the Gowland photographs were rejected, he complained to defendant Thompson and to a Lt. Shields. The reply from both officials was that they were unable to determine if the women depicted in the photos were personal friends of Trapnell and, accordingly, the photos were rejected. Transcript of Hearing at 13. Indeed, Trapnell’s complaint anticipated that the defendants would raise this narrowing interpretation of the regulations as a defense. Paragraph 14 of Trapnell’s complaint stated that the regulations under attack “do not prohibit specifically or by inference the mailing and receiving of semi-nude photographs from family and friends.”
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_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".
BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, Appellant, v. Mozart G. RATNER, Appellee.
No. 17655.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 15, 1963.
Decided June 11, 1964.
Mr. Abraham J. Harris, Washington, D. C., for appellant.
Mr. Sheldon E. Bernstein, Washington, D. C., with whom Mr. Mozart G. Ratner, Washington, D. C., was on the brief for appellee. Mr. Paul H. Mannes, Washington, D. C., also entered an appearance for appellee.
Before Edgerton, Senior Circuit Judge, and Fahy and Danaher, Circuit Judges.
DANAHER, Circuit Judge.
Bakery and Confectionery Workers International Union of America has appealed from an “Order and Judgment” of the District Court in favor of the appel-lee to recover $54,884.91 as counsel fees. The appellee as attorney for five local Union officers had instituted an action, C.A. 686-60, entitled Moschetta, et al. v. Cross, et al., against the International’s President, one James G. Cross; its Secretary-Treasurer, one Peter H. Olson; and five Vice Presidents of the International. All such officers at the time were members of the International’s General Executive Board and occupied positions of trust in relation to the affairs of the International and its membership. Before the District Court was a “second amended and supplemental complaint” which had charged that Bakery and Confectionery Workers’ funds had been unlawfully misappropriated by Cross and that other acts of financial corruption had occurred, with breaches of fiduciary duty and misconduct on the part of the foregoing named officers. The five plaintiffs claimed status to sue individually and also as representatives of some 70,000 Bakery and Confectionery Workers members whose welfare and interest had been damaged. After much litigation in behalf of the class and the performance of other services for the benefit of the International and its members, the appellee moved to withdraw as counsel. He also asked for the appointment of “independent” counsel to continue the class action and that he be compensated for all services and disbursements. The award entered November 6, 1962, ran against the International, its members, the class plaintiffs and others. The International alone has sought review.
The appellant argues first that the International and its members may not law fully be held to payment of the judgment since 29 U.S.C. § 501(b) authorizes the trial judge merely to allot “a reasonable part of the recovery * * * to pay the fees of counsel * * * and to compensate” for expenses incurred in litigation brought pursuant to that subsection. It is argued that there was no money “recovery” in behalf of the International from which to “allot” fees and reimbursements. It is additionally con-bended that there can be no valid award running against the International without notice to its membership with respect to the fees since the International, unlike the class plaintiffs, had not been a party to any agreement with counsel, and that the award otherwise lacks support in the :record.
The various phases of litigation presented in the District Court, and other .actions pursued by the appellee in be.half of the class and the International’s members reflect a complex background. 'That there had been misappropriation of Union funds is beyond question. The incumbent officers of the International had refused to seek an accounting and •other available relief. A voluntary association of Bakery and Confectionery Workers local union officers was formed, .known as the Local Union Reunification Committee, or LURC. This group was headed by the presidents of five local unions who authorized the institution of the class action, Moschetta v. Cross, to be brought pursuant to a retainer agreement between the LURC plaintiffs and counsel, with provision for litigation disbursements and costs and for compensation to the attorneys.
The Moschetta complaint in the District Court had not only expressly sought to recover the counsel fees, costs and expenses incurred in prosecuting the action, but asked for substantial equitable relief including an accounting; restitution of misappropriated funds; an injunction against further misappropriation and diversion of funds of the International; an order against Cross and others to restrain them from penalizing and coercing the Moschetta plaintiffs and other persons cooperating with LURC for the purpose of preventing them from prosecuting the action and from obtaining information relevant thereto; continuous court supervision of the financial practices of the International and its officers; and a prayer that the court order a membership referendum in accordance with the constitution of the International preliminary to the calling of a national convention. The District Court found pursuant to 29 U.S.C. § 501 (b) that “good cause” had been shown for the commencement of the Moschetta proceeding.
Confronted by the demands of the class plaintiffs, the record shows, Cross and others expressed willingness in 1960 to settle the pending controversy and reorganize the International. A proposed settlement agreement was filed in the District Court with a motion to dismiss the Moschetta suit, and an appropriate announcement was published in the International’s news letter. However further alleged derelictions on the part of Cross and Olson having come to light, their suspension followed in March 1961.
We deem it unnecessary to particularize as to all details of the machination and obstructive tactics thereafter pursued by Cross and the Moschetta defendants. We note first that Cross and others maneuvered for control of the International’s General Executive Board. They succeeded in the installation of International Vice President Landriscina, one of the original defendants, as acting president of the International. Then in April 1961, LURC caused the appellee to reenter the case. The motion to dismiss the complaint was withdrawn and steps were taken pursuant to which the District Court fixed January, 1962 as the date for a court-supervised convention, with provision in the court’s order for the protection of LURC.
We Tefer briefly to an earlier but not unrelated aspect of the problem considered by Judge Tamm. While Cross still dominated the International, various officers who had supported LURC were dismissed. Agreeably to the provisions of 29 U.S.C. § 412 as applicable under 29 U.S.C. § 529 (1961) which makes unlawful acts of reprisal against union members who exercise their rights under the Landrum-Griffin Act, one Alvino and three other high-ranking officers of the International brought suit, C.A. 2400-60, Alvino, et al. v. Bakery and Confectionery Workers International Union. The District Court granted a preliminary injunction directing their reinstatement with back pay. Such success in that action and yet other steps in the campaign conducted by and under the direction of the appellee resulted in the election of a pro-LURC slate of officers at the International’s January, 1962 convention.
The International’s membership, protected by the District Court’s order, took control of the January, 1962 convention. One Kralstein, reinstated as a result of that order in the Alvino action, became president of the International. The Bakery and Confectionery Journal in February, 1962 noted the part played by LURC in bringing about the convention, particularly recognizing that LURC had been successful in the fight to remove from office the “entrenched International union officials.” At the convention, it was decided that the LURC association should be dissolved and that the International should thereupon become plaintiff in what had been the class action. Present counsel for the appellant was to represent the International. The appellee-was informed that the International, would not accept responsibility for LURC counsel fees “unless and until ordered by a court to do so.” It is un-controverted that from April, 1961 through January 25, 1962, the appellee Ratner had received no payment for his. services or those of his associates.
Such in brief summary are some of the circumstances under which the ap-pellee sought to withdraw from the Moschetta case, an award of counsel fees for services rendered, and reimbursement of expenses incurred in connection therewith. Relying upon his familiarity with the entire record in all the litigation and its accompanying aspects, with the memo-randa of the respective parties before him, and on the uncontroverted affidavit of the appellee, Judge Tamm ruled orally: that appellee’s motion to withdraw from the case was to be granted; his motion to appoint “independent” counsel was to be denied but as he noted, only upon the representation by the appellant’s counsel “that the Union intends to employ independent counsel to pursue-the accounting action”; and finally as. follows:
“With reference to Mr. Ratner’s motion for a fee in the amount of $54,884.91, the Court will grant the motion. The Court will grant the motion first as to the contracting parties who entered into the fee agreement. The Court will grant the motion second as to the class represented by these named plaintiffs. And third the Court will grant the motion in so far as it assesses the fees against the funds of the Union. The Court believes that this action was initiated, was undertaken, and was prosecuted in the interest of the Union membership as a whole. The Court believes that such fruits as flowed from the lengthy proceedings flowed to the benefit of the Union and for the benefit of all of its members. The Court, accordingly, grants the motion in that regard.”
Thereafter Judge Tamm filed the challenged “Order and Judgment” with its award of $54,884.91 “on account of work performed and disbursements incurred” by the appellee and his associates. Recited further in that Order and Judgment are the following findings:
“(3) That prior to the filing of the motion for the allowance of fees and disbursements, no protest was ever made as to the quality or nature of the services performed by Mr. Ratner or his associates nor as to the legitimacy of the billing rendered ;
X * -X- X * X-
“(5) That this suit was initiated and prosecuted in the interest of the Union membership as a whole and such fruits as flowed from the proceedings herein were for the benefit of the Union and all its members; namely, consisting of:
“(a) A Court-ordered convention conducted in accordance with the lawful provisions of the Union’s Constitution;
“(b) Court orders protecting intra-Union pre-convention political activity from illegal officer restraint and reprisal; and
“(c) Court proceedings to enforce this Court’s orders, as aforesaid.
“(6) That there is no basis for not honoring the aforementioned fee agreement or for withholding payment of the fees billed as aforesaid * *
We are satisfied that the findings and conclusions of the trial judge are clearly supported on the record before us in all respects but one. We are concerned that he has rested the amount of the award against the International simply upon the “retainer agreement entered into between Mr. Ratner and the named plaintiffs on the latter’s behalf and on behalf of all members of the plaintiff class.” That there was a retainer agreement is beyond question. Its provisions may be taken to be controlling and to support the award insofar as liability has been asserted against the class plaintiffs. To that extent and on that basis the findings are adequate, for the compensation therein as fixed by the parties to that agreement fairly measures the services rendered to the Moschetta plaintiffs. They have not appealed.
How to evaluate the legal services which inured to the benefit of the International and its membership for the period from April, 1961 through January 25, 1962 involves a different question. To be sure, compensation at the rates provided in the retainer agreement with the class plaintiffs may be considered as some evidence of the value which the ap-pellee initially placed upon his own services. But that agreement was arrived at when only the class action lay ahead. Counsel could not have then known that the Alvino suit would become necessary, nor could he have known of its important impact in paving the way for the convention. The protective court orders, the conferences and other services up to and including the convention, the ultimate reorganization of the International and its restoration to the control of its membership in accordance with the International constitution must be taken into account. The value of legal services so rendered may even be greater than a computation based upon the scale provided in the retainer agreement. In any event the services rendered by the appellee and his associates are to be measured in terms of value of the benefits afforded to the International and its membership. Since the liability of the International and its membership did not here rest upon a contract, quantum meruit provides the rule which, we are satisfied, must be applied in an ascertainment of that value.
In different context but to the same end we approached a phase of this problem in Milone v. English where we said:
“It lies now within the sound discretion of the -District Court, though it is under no legal compulsion to do so, to require the International to pay reasonable counsel fees to appellants’ counsel should the court find, either or both, that they have materially aided in the creation of a fund for the benefit of the International by reason of the eventualities of our remand above authorized, or that they have benefited the International in other ways.” (Emphasis added.)
We thus recognized the standard to be one of reasonableness, as related to and reflecting benefits to the International “in other ways” than the mere creation of a fund. The appellant insists that section 501(b) limits the allotment of fees to the appellee to whatever money “recovery” may have become available through his efforts. We reject that contention. Congress in section 501(a) has. defined the fiduciary status of union officers. They are to execute their trust, for the benefit of the organization and its-members. Should such officers violate their trust, a member of the union is authorized under section 501(b) to initiate-steps looking toward remedial action. Thus, any such member and his counsel are to be protected, all to the end that, the membership itself may police its own. labor organization, whether the suit seeks damages or an accounting “or other appropriate relief for the benefit of the-labor organization.”
Here the defalcation and pilfering of' the International’s treasury by Cross and', others, the impairment of the pension fund of the membership, the establishment of proper accounting procedures,, the calling of a convention for membership expression and control, and the requirement of conformity by the officers, with the International’s constitution in. their conduct of the business of the International were among the proper subjects of concern to the entire membership. With respect thereto, the accomplishment of benefits to the membership-as “appropriate relief” might well be achieved under court authority without monetary “recovery” as such. The payment of fees earned and reimbursement, of expenses incurred became the obligation of the International under traditional equitable principles which were-simply called into play pursuant to the-authorization for action under section 501. The claimed limitation relied upon by the appellant does not exclude the International's liability for reasonable fees,, properly earned. Rather the language is. permissive. It means no more than this:: where a monetary recovery has in fact been achieved, that fund may constitute a source from which the trial judge “may allot a reasonable part” for the payment of counsel fees and disbursements.
Appellant would undercut our conclusion as to the fee liability of the International and its membership by a reference to Cunningham v. English. But there we were concerned with a unique situation where the District Court had created a Board of Monitors to assist it in exercising its equitable powers with respect to a complicated situation affecting 1,500,000 union members. The court without notice had entered a consent decree, the effect of which had engaged our attention.
Here almost from the outset, the International was a party. At no time did it controvert the facts as attested in the appellee’s affidavit or as perceived and expressed by the District Judge in charge throughout. The International had received the benefits from the appellee’s services in various respects including those derived from the class action, and thereafter had taken over prosecution of the litigation. The International and its membership had notice of all proceedings and had participated therein. For the reasons but upon the basis previously treated, there remains only the matter of ascertainment of the value of the benefits to the International and its membership to predicate whatever award the District Court equitably shall determine to be due. On this account only do we now reverse.
Reversed and remanded for further proceedings consistent with this opinion.
. Pursuant to § 501 of the Labor-Management Reporting and Disclosure Act, 1959 (LMRDA), 73 Stat. 535 (1959), 29 U.S. C. § 501.
. For example, Cross was convicted of various offenses including criminal conspiracy and embezzlement by agent and was sentenced to imprisonment. No appeal was taken.
. Legal services were to be paid thus: Mozart G. Ratner, $35 per bour; Sidney Dickstein & David I. Shapiro, $25 per hour; junior associate counsel, $15 per hour. Pursuant to that agreement and for the period up to April 18, 1961, counsel were paid substantial legal fees and •expenses which are not here involved.
. In due course, District Judge Tamm was designated as a “special judge” to take charge of all aspects of the litigation, including motions, pretrial proceedings and trial. Of. Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351; and the sample order at 378.
. Up to this point, the appellee and his associate counsel had received payment for their services under their retainer agreement with LURC. See note 3 supra.
. Three separate appeals, Nos. 16474, 16478 and 16480, were brought to this court involving protective orders of the District Court. These appeals were here consolidated, only to be dismissed after the International’s convention was held in January, 1962. The appellee appeared as attorney for the Moschetta plaintiffs in these cases.
. The appellant on brief tells us: “The Moschetta case succeeded in forcing the convention some months earlier in 1962 than it otherwise would have been held, since anti-LURC forces planned a convention for the fall of 1962. This was-the one tangible achievement of the litigation.”
. See vote 3 supra.
. Text, supra, and see 46 LRRM 2812 (D. D.C.1960). Judge Tamm expressly found —correctly we think — that the appellee’s services in the Alvino case were to be covered by the compensation award.
. 113 U.S.App.D.C. 207, 212, 306 F.2d 814, 819 (1962) ; and see Angoff v. Goldfine, 270 F.2d 185, 188-189 (1 Cir. 1959).
. Johnson v. Nelson, 325 F.2d 646, 650 (8 Cir. 1963) ; and see generally, Counsel Fees For Union Officers Under The Fiduciary Provision of Landrum-Griffin, 73 Yale L.J. 443, 468, 470 (1964).
. Sprague v. Ticonic Bank, 307 U.S. 161, 166-167, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Here an assessment of less than one dollar per member would discharge the-entire judgment as awarded here against the International.
. 106 U.S.App.D.C. 92, 94, 269 F.2d 539, 541 (1959), where we said: “Notice should have been given to the membership before approval by a court of equity of this obligation upon union funds, oven if not required by Rule 23.” Apart from appellant’s failure to make a record on this ground in the District Court, the situation here is clearly distinguishable.
. English v. Cunningham, 106 U.S.App. D.C. 70, 74, 269 F.2d 517, 521 (1959).
. Ibid., cert. denied, 361 U.S. 897, 80 S. Ct. 195, 4 L.Ed.2d 152 (1959), and memorandum of Mr. Justice Frankfurter at 361 U.S. 905, 909-910, 80 S.Ct. 187, 188, 189.
. He found that there was “no basis * * * for withholding payment of the fees,” but added “as billed,” i. e. per the retainer agreement. This latter phase has been discussed, text supra.
. Cf. Angoff v. Goldfine, supra note 10, 270 F.2d at 188-93; Wyoming Ry. Co. v. Herrington, 163 F.2d 1004, 1006-1007 (10 Cir. 1947) ; Blackhurst v. Johnson, 72 F.2d 644, 648 (8 Cir. 1934).
. Cf. Sherwin v. Welch, 115 U.S.App). D.C. 328, 331, 319 F.2d 729. 732 (1963).
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_issue_2
|
06
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED AIR LINES, INC. v. EVANS
No. 76-333.
Argued March 29, 1977
Decided May 31, 1977
Stuart Bernstein argued the cause for petitioner. On the briefs were Arnold T. Aikens, Kenneth A. Knutson, and Earl G. Dolan.
Alan M. Levin argued the cause for respondent pro hac vice. With him on the brief was Isaiah S. Dorman.
Briefs of amici curiae urging reversal were filed by Gordon Dean Booth, Jr., for Delta Air Lines, Inc., et al.; and by Peyton H. Moss, Douglas S. McDowell, and Robert E. Williams for the Equal Employment Advisory Council et al.
Jack Greenberg, James M. Nabrit III, Patrick 0. Patterson, and Barry Goldstein filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.
Mr. Justice Stevens
delivered the opinion of the Court.
Respondent was employed by United Air Lines as a flight attendant from November 1966 to February 1968. She was rehired in February 1972. Assuming, as she alleges, that her separation from employment in 1968 violated Title VII of the Civil Rights Act of 1964, the question now presented is whether the employer is committing a second violation of Title VII by refusing to credit her with seniority for any period prior to February 1972.
Respondent filed charges with the Equal Employment Opportunity Commission in February 1973, alleging that United discriminated and continues to discriminate against her because she is a female. After receiving a letter granting her the right to sue, she commenced this action in the United States District Court for the Northern District of Illinois. Because the District Court dismissed her complaint, the facts which she has alleged are taken as true. They may be simply stated.
During respondent’s initial period of employment, United maintained a policy of refusing to allow its female flight attendants to be married. When she married in 1968, she was therefore forced to resign. Although it was subsequently decided that such a resignation violated Title VII, Sprogis v. United Air Lines, 444 F. 2d 1194 (CA7 1971), cert. denied, 404 U. S. 991, respondent was not a party to that case and did not initiate any proceedings of her own in 1968 by filing a charge with the EEOC within 90 days of her separation. A claim based on that discriminatory act is therefore barred.
In November 1968, United entered into a new collective-bargaining agreement which ended the pre-existing “no marriage” rule and provided for the reinstatement of certain flight attendants who had been terminated pursuant to that rule. Respondent was not covered by that agreement. On several occasions she unsuccessfully sought reinstatement; on February 16, 1972, she was hired as a new employee. Although her personnel file carried the same number as it did in 1968, for seniority purposes she has been treated as though she had no prior service with United. She has not alleged that any other rehired employees were given credit for prior service with United, or that United’s administration of the seniority system has violated the collective-bargaining agreement covering her employment.
Informal requests to credit her with pre-1972 seniority-having been denied, respondent commenced this action. The District Court dismissed the complaint, holding that the failure to file a charge within 90 days of her separation in 1968 caused respondent’s claim to be time barred, and foreclosed any relief under Title VII.
A divided panel of the Court of Appeals initially affirmed; then, after our decision in Franks v. Bowman Transportation Co., 424 U. S. 747, the panel granted respondent’s petition for rehearing and unanimously reversed. 534 F. 2d 1247 (CA7 1976). We granted certiorari, 429 U. S. 917, and now hold that the complaint was properly dismissed.
Respondent recognizes that it is now too late to obtain relief based on an unlawful employment practice which occurred in •1968. She contends, however, that United is guilty of a present, continuing violation of Title VII and therefore that her claim is timely. She advances two reasons for holding that United’s seniority system illegally discriminates against her: First, she is treated less favorably than males who were hired after her termination in 1968 and prior to her re-employment in 1972; second, the seniority system gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination. Neither argument persuades us that United is presently violating the statute.
It is true that some male employees with less total service than respondent have more seniority than she. But this disparity is not a consequence of their sex, or of her sex. For females hired between 1968 and 1972 also acquired the same preference over respondent as males hired during that period. Moreover, both male and female employees who had service prior to February 1968, who resigned or were terminated for a nondiscriminatory reason (or for an unchallenged discriminatory reason), and who were later re-employed, also were treated as new employees receiving no seniority credit for their prior service. Nothing alleged in the complaint indicates that United’s seniority system treats existing female employees differently from existing male employees, or that the failure to credit prior service differentiates in any way between prior service by males and prior service by females. Respondent has failed to allege that United’s seniority system differentiates between similarly situated males and females on the basis of sex.
Respondent is correct in pointing out that the seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by § 706 (d). A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Respondent emphasizes the fact that she has alleged a continuing violation. United’s seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a nondiscriminatory reason. In short, the system is neutral in its operation.
Our decision in Franks v. Bowman Transportation Co., supra, does not control this case. In Franks we held that retroactive seniority was an appropriate remedy to be awarded under § 706 (g) of Title VII, 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. V), after an illegal discriminatory act or practice had been proved, 424 U. S., at 762-768. When that case reached this Court, the issues relating to the timeliness of the charge and the violation of Title VII had already been decided; we dealt only with a question of remedy. In contrast, in the case now before us we do not reach any remedy issue because respondent did not file a timely charge based on her 1968 separation and she has not alleged facts establishing a violation since she was rehired in 1972.
The difference between a remedy issue and a violation issue is highlighted by the analysis of § 703 (h) of Title VII in Franks. As we held in that case, by its terms that section does not bar the award of retroactive seniority after a violation has been proved. Rather, § 703 (h) “delineates which employment practices are illegal and thereby prohibited and which are not,” 424 U. S., at 758.
That section expressly provides that it shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system, provided that any disparity is not the result of intentional discrimination. Since respondent does not attack the bona fides of United’s seniority system, and since she makes no charge that the system is intentionally designed to discriminate because of race, color, religion, sex, or national origin, § 703 (h) provides an additional ground for rejecting her claim.
The Court of Appeals read § 703 (h) as intended to bar an attack on a seniority system based on the consequences of discriminatory acts which occurred prior to the effective date of Title VII in 1965, but having no application to such attacks based on acts occurring after 1965. This reading of § 703 (h) is too narrow. The statute does not foreclose attacks on the current operation of seniority systems which are subject to challenge as discriminatory. But such a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer. A contrary view would substitute a claim for seniority credit for almost every claim which is barred by limitations. Such a result would contravene the mandate of § 703 (h).
The judgment of the Court of Appeals is reversed.
It is so ordered.
78 Stat. 253. Title VII, as amended, is codified in 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. V).
At that time United required that all flight attendants be female, except on flights between the mainland and Hawaii and on overseas military charter flights. See Sprogis v. United Air Lines, 444 F. 2d 1194, 1203 (CA7 1971) (Stevens, J., dissenting), cert. denied, 404 U. S. 991.
Section 706 (d), 78 Stat. 260, 42 U. S. C. § 2000&-5 (d), then provided in part:
“A charge under subsection (a) shall be filed within ninety days after the alleged unlawful employment practice occurred . . .
The 1972 amendments to Title VII added a new subsection (a) to § 706. Consequently, subsection (d) was redesignated as subsection (e). At the same time it was amended to enlarge the limitations period to 180 days. See 86 Stat. 105,42 U. S. C. § 2000e-5 (e) (1970 ed., Supp. V).
Timely filing is a prerequisite to the maintenance of a Title VII action. Alexander v. Gardner-Denver Co., 415 U. S. 36, 47. See Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229, 239-240.
Respondent is carried on two seniority rolls. Her “company” or “system” seniority dates from the day she was rehired, February 16, 1972. Her “stewardess” or “pay” seniority dates from the day she completed her flight attendant training, March 16, 1972. One or both types of seniority determine a flight attendant’s wages; the duration and timing of vacations; rights to retention in the event of layoffs and rights to re-employment thereafter; and rights to preferential selection of flight assignments. App. 5-6, 10.
Under the provisions of the collective-bargaining agreement between United and the Air Line Stewardesses and Flight Stewards as represented by the Air Line Pilots Association International for the period 1972-1974, seniority is irrevocably lost or broken after the separation from employment of a flight attendant “who resigns or whose services with the Company are permanently severed for just came.’’ Brief for Respondent 6.
The relief requested in respondent’s complaint included an award of seniority to the starting date of her initial employment with United, and backpay “lost as a result of the discriminatory employment practices of [United].” App. 8. In her brief in this Court, respondent states that she seeks backpay only since her date of rehiring, February 16, 1972, which would consist of the increment in pay and benefits attributable to her lower seniority since that time. Brief for Respondent 4.
The District Court recited that the motion was filed pursuant to Fed. Rule Civ. Proc. 12 (b) (1) and dismissed the complaint on the ground that it had no jurisdiction of a time-barred claim. The District Court also held, however, that the complaint did not allege any continuing violation. For that reason, the complaint was ripe for dismissal under Rule 12 (b)(6). The District Court stated:
“Plaintiff asserts that by defendant’s denial of her seniority back to the starting date of her original employment in 1966, United is currently perpetuating the effect of past discrimination.
“Plaintiff, however, has not been suffering from any 'continuing’ violation. She is seeking to have this court merely reinstate her November, 1966 seniority date which was lost solely by reason of her February, 1968 resignation. The fact that that resignation was the result of an unlawful employment practice is irrelevant for purposes of these proceedings because plaintiff lost her opportunity to redress that grievance when she failed to file a charge within ninety days of February, 1968. United’s subsequent employment of plaintiff in 1972 cannot operate to resuscitate such a time-barred claim.” App. 18.
Respondent cannot rely for jurisdiction on the single act of failing to assign her seniority credit for her prior service at the time she was rehired, for she filed her discrimination charge with the Equal Employment Opportunity Commission on February 21, 1973, more than one year after she was rehired on February 16, 1972. The applicable time limit in February 1972, was 90 days; effective March 24, 1972, this time was extended to 180 days, see n. 3, supra.
This case does not involve any claim by respondent that United’s seniority system deterred her from asserting any right granted by Title VII. It does not present the question raised in the so-called departmental seniority cases. See, e. g., Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va. 1968).
The Court of Appeals had disposed of the timeliness issues in Franks, 495 F. 2d 398, 405 (CA5 1974).
This finding of the District Court was unchallenged in the Court of Appeals, id., at 402, 403, and was assumed in this Court, 424 U. S., at 750.
In any event we noted in Franks: “The underlying legal wrong affecting [the class] is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system.” Id., at 758.
At the time she was rehired in 1972, respondent had no greater right to a job than any other applicant for employment with United. Since she was in fact treated like any other applicant when she was rehired, the employer did not violate Title VII in 1972. And if the employer did not violate Title VII in 1972 by refusing to credit respondent with back seniority, its continued adherence to that policy cannot be illegal.
Section 703 (h), 78 Stat. 257, 42 U. S. C. §2000e-2 (h), provides:
“Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin ....’’
534 F. 2d, at 1251.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
TEXAS CITY REFINING, INC., et al., Appellants, v. A. F. KLAVENESS & CO., A/S, Appellee.
No. 18573.
United States Court of Appeals Fifth Circuit.
March 31, 1961.
Rehearing Denied April 29, 1961.
Robert Eikel, Houston, Tex., for appellants.
Bryan F. Williams, Jr., of Royston, Rayzor & Cook, Galveston, Tex., for appellee.
Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.
JONES, Circuit Judge.
The M/V Kingsville was an oceangoing general cargo vessel under the Norwegian flag and owned by the appellee, A. F. Klaveness & Co., A/S, a Norwegian corporation. The S/T Four Lakes is an ocean-going tank ship of United States registry and was operated, at the time of the occurrences giving rise to this litigation, under a bareboat charter by the appellee, Texas City Refining, Inc., a Delaware corporation. The Kings-ville has a length of 505 feet and a breadth of 64 feet 3 inches. The Four Lakes has a length of 504 feet and a breadth of 68 feet. The two vessels were in a collision and this appeal is from a decree of the district court finding that the Four Lakes and those in charge of her navigation' were at sole fault with respect to the collision. The collision occurred in the slip of Port Tampa, Florida. The slip, sometimes called the “canal” is approximately 3600 feet long and, as found by the district court, is approximately 160 feet wide. The slip runs in a general east-west direction and the only entrance for ships is' at the westerly end. To enter the slip a vessel must proceed through a cut and make a turn of about 65 degrees.
The collision occurred in the early afternoon of January 14, 1958. The weather, sea and tide were normal. Just prior to the collision the Kingsville was moored near the slip entrance at a dock adjacent to a phosphate elevator. The trial court found that she was properly and adequately moored, with a sufficient number of lines of adequate type, strength and condition to secure her position during the passage of another vessel in the slip, if the other vessel be navigated with care. The Kingsville’s mooring lines, the court found, were secured in a seamanlike manner, her port side was well alongside her moorings, and her beam extended into the slip only as far as was necessary for a ship of her breadth. The Four Lakes came to the slip bound for an oil terminal east of the dock at which the Kingsville was moored. When the Four Lakes reached the entrance to the slip she made fast a tug by a single headline. From the district court findings we quote:
“As the Four Lakes drew abeam of Kingsville to pass to the starboard of the moored vessel, the Four Lakes failed to keep sufficiently clear of the Kingsville and the port side of the Four Lakes was in collision with the starboard side of the Kingsville. The collision was caused either by the Four Lakes striking the Kings-ville in the first instance, or by passing so close to her under the circumstances as to cause the Kings-ville to surge away from the dock because of the passage of the Four Lakes in such close proximity to the Kingsville. In either event the Four Lakes and those in charge of her navigation were at fault in navigating her too close to the center of the channel as she drew abreast of the Kingsville and hence too close to the Kingsville for safe passage. Because of the heavily laden condition of the Four Lakes and engine maneuvers which she made in too close a proximity to the Kingsville the casualty and resulting damage occurred.”
The district court found that the Four Lakes was solely at fault for the collision and that the Kingsville was free from fault. A decree for the libellant, the appellee here, was entered and the cross-libel of the appellant was dismissed.
In seeking to procure a reversal of the district court’s decree, the appellant challenges most of its material findings. The appellant contends that it was clearly established, without substantial evidence to the contrary, that the lines by which the Kingsville was moored were slack, old and inadequately placed, that as the Four Lakes passed the Kingsville surged, one or more of her inadequate lines parted and she moved away from her mooring and struck the passing Four Lakes. To this factual hypothesis the appellant would apply the rule thus announced by the Supreme Court:
“The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented.” The Louisiana, 3 Wall. 164, 70 U.S. 164, 18 L.Ed. 85.
If the facts, as established by the evidence, were as the appellant insists, and the collision occurred because the Kings-ville broke loose from her moorings by reason of her lines being inadequate and improperly placed, then the doctrine of The Louisiana would be applicable.
The appellee, answering the contentions of the appellant, cites as the law applicable the following:
“A vessel properly moored to the pier or to the shore, like a properly anchored vessel, has the highest degree of privilege. If she is damaged by a moving vessel, the latter is prima facie at fault.” Griffin, Collision 373, § 158.
If the facts, as established by the evidence, are as the district court found them to be and the Kingsville was properly moored and was, in fact, damaged by the moving Four Lakes, then the principle quoted from Griffin is applicable and the decree from which this appeal stems must be affirmed.
Each of the appellant’s specifications of error challenged a finding of fact made by the district court. Our duty both begins and ends with a consideration of whether or not the findings of the trial court are clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Ohio Barge Line, Inc. v. Oil Transport Company, Inc., 5 Cir., 1960, 280 F.2d 448. We have addressed ourselves to that task. A discussion of the evidence would make no contribution to jurisprudence. We will content ourselves by saying that the evidence clearly sustains the district court’s findings. Its judgment is
Affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_treat
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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 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.
LEVENTHAL et al. v. DISTRICT OF COLUMBIA et al.
No. 7092.
United States Court of Appeals for the District of Columbia.
Decided Sept. 26, 1938.
Rehearing Denied Nov. 19, 1938.
STEPHENS, Associate Justice, dissenting.
Michael J. Keane, Jr., and Gerald Oxen-burg, both of Washington, D.C., for appellants.
Elwood Seal, Corp. Counsel, and Vernon E. West, Chief Asst. Corp. Counsel, both of Washington, D.C., for appellees.
Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
By bill in equity in the District Court, plaintiffs sought to require the Zoning Commission to rezoue plaintiffs’ lot at Michigan Avenue, 12th and Randolph Streets N. E., and to require the Building Inspector to grant corresponding permits. The case was heard on defendants’ motion to dismiss. The motion was sustained, and plaintiffs appeal.
The action of zoning authorities, as of other administrative officers, is not to be declared unconstitutional unless the court is convinced that it is “clearly arbitrary and unreasonable, having no substantial relation to the * * * general welfare.” Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016. Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842. Cf. Pacific States Box & Basket Company v. White, 296 U.S. 176, 182, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853. If the question is “fairly debatable,” the zoning stands. Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074. Accordingly the question on this appeal is whether the facts alleged in the plaintiffs’ bill, if taken as true, show beyond debate that the present residential zoning of plaintiffs’ property is arbitrary and unreasonable.
Plaintiffs’ property is a corner lot. It is on the east side of 12th Street, N. E., at the point where 12th Street merges with Michigan Avenue, and on the north side of Randolph Street. Plaintiffs’ brief aptly paraphrases their bill as alleging “that Twelfth Street, Northeast, upon which street appellants’ parcel of land abuts, for several miles running north from Rhode Island Avenue, is entirely 1st Commercial on both sides of the street, except for appellants’ property fronting on Twelfth Street.” This conveys the impression that the property on both sides (north and south) of theirs, and the property across the' street to the west, is zoned commercial. But plaintiffs’ Exhibit C, a plat annexed to their bill, shows the facts, which are quite different. It shows that no neighboring property farther north than plaintiffs’, or as far north, is zoned commercial. It shows that the property to the west of plaintiffs’, across 12th Street, is likewise zoned residential; what saves their statement from being categorically untrue is the fact that 12th Street here merges with Michigan Avenue, so that this opposite property is on Michigan instead of 12th. All the property which abuts on plaintiffs’ is zoned residential, like theirs. All the property which faces theirs across any street or streets is zoned residential, except a narrow strip to the southwest, across both 12th and Randolph Streets, and a few feet of the frontage to the south, across Randolph Street.
Plaintiffs’ property is occupied by a cleaning establishment, a “nonconforming use” which plaintiffs are privileged, under the law, to maintain. There are heavy traffic, a stop sign, a bus stop, a hack stand, and the end of a street-car line in'front of plaintiffs’ property; noise, fumes and confusion result; and sleep is broken at 5 a. m. The bill alleges that plaintiffs’ land is “wholly unfit” for any residential purpose. This is not a statement of fact; fitness or unfitness for residential use is a matter not merely of degree, but of opinion. The facts in this case prevent plaintiffs’ statement from being even a tenable opinion; for it is to be presumed, from their failure to allege the contrary, that all the residence-zoned property adjoining or facing their land, most of which is subject to identical conditions, can be and is used for residence purposes. As there is no allegation to the contrary we must even assume that the commercial-zoned property across the street from plaintiffs’, at the southeast corner of 12th and Randolph Streets, is used for residence purposes. Even if facts were alleged which would support, or even require, a conclusion that plaintiffs’ property could not be used for residence purposes, it could not be inferred that the present zoning deprives them of the use of their property, since it appears that the property is lawfully devoted to a non-conforming commercial use. Plaintiffs allege that they cannot get enough rent for their property, as now zoned, to pay taxes and other carrying charges. This suggests that their taxes are too high, but not that their zoning is clearly unreasonable and arbitrary. Plaintiffs would make more money if their zoning were changed. But residential zoning is not invalidated by the fact that if the property “were available for business purposes its market value would be greatly enhanced.” Zahn v. Board of Public Works, 274 U.S. 325, 327, 47 S.Ct. 594, 71 L.Ed. 1074. Zoning may inflict serious pecuniary injury upon the plaintiff without being arbitrary. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas.l917B, 927; Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. “Some must suffer by the establishment of any territorial boundaries. * * * If these limits hurt the present plaintiffs in error, other limits would hurt others.” L’Hote v. New Orleans, 177 U.S. 587, 597, 20 S.Ct. 788, 792, 44 L.Ed. 899.
Plaintiffs tried in vain to get even one of the other property-owners in their neighborhood to consent to a hearing on rezoning. Obviously, therefore, the advantage which plaintiffs seek would not extend to their neighbors. It must be presumed that the rezoning which plaintiffs seek would actually inflict injury on the owners and occupants of the other property in the neighborhood; for the bill does not allege that they would not be injured, or that there is need of more business property. That “over-zoning” for commercial uses tends to depreciate, property values is well known.
“Facts relied upon to rebut the presumption of constitutionality must be specifically set forth.” Pacific States Box & Basket Company v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 101 A.L.R. 853. An allegation that “practically all of the usual and customary benefits of ownership were appropriated by the aforesaid Zoning Commission” is not a fact specifically set forth. In our opinion, appellants’ bill sets forth no facts sufficient to rebut the presumption. Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842, on which they rely, was quite a different case. The land which the Court there held to be arbitrarily zoned residential was bounded on two sides by unrestricted property; here, all the property adjoining or facing plaintiffs’ lot, except a small amount of frontage across Randolph Street, is in the residential zone. The land in issue in the Nectow Case was bounded on all sides either by unrestricted property or by streets; here, it is bounded on all sides either by residential property or by streets. There, a large automobile assembly plant adjoined the property, and a soap factory and a railroad were close by; here, the obstacles to residence use are less impressive. In Hazen v. Hawley, 66 App.D.C. 266, 86 F.2d 217, this court affirmed a decree which ordered the Zoning Commission to rezone plaintiffs’ property so as to permit the building of an apartment house; .but the trial court had found, among other things, that (IX) “Petitioner’s property is located in the heart of an area extensively occupied by hotels and apartment houses” [page 220]; that (X) it was the only property along the Capital Traction Company’s car lines, from the downtown district to Chevy Chase Circle, so zoned as to prohibit apartment houses; and that (XVII) “There is extreme need for additional housing facilities in the District of Columbia, and * * * a shortage of available apartments.” In Ehrlich v. Village of Wilmette, 361 Ill. 213, 223, 197 N.E. 567, 572, the property was “the only property in the block in which it is located fronting on Fourth Street * * * singled out for classification in the A resident district,” and the terminal yards of a railway were directly across the street. In those cases and some others it has been held that the owner of a residence-zoned island or peninsula in a commercial-zoned sea, if he is seriously injured by the discrimination against him, may be entitled to complain of arbitrary and unreasonable action. In the present case, plaintiffs’ property is not in that category; on the contrary, if plaintiffs had their way their property would become a commercial-zoned island or peninsula in a residence-zoned sea.
In Women’s Kansas City St. Andrew Society v. Kansas City, Mo., 8 Cir., 58 F.2d 593, it was held unreasonable and arbitrary to forbid the use of an existing residence, in a residential zone, as a charitable “home” for twelve old ladies. There were apartment hpuses in the neighborhood; and without violating the ordinance the same building, presenting exactly the same appearance, could have been used as a boarding house for the same old ladies. The court held, in effect, that it was immaterial to the public welfare whether the occupants lived on their own funds or the funds of a charitable trust. Village of University Heights v. Cleveland Jewish Orphans’ Home, 6 Cir., 20 F.2d 743, 54 A.L.R. 1008, laid down the same doctrine with respect to the home there involved. A similar question with regard to a home for aged poor was adverted to, but not decided, in Washington ex rel. Seattle Title Trust Company, Trustee v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654. These cases, which appellants cite, do not sustain their position. As the court said in the University Heights Case, “We can see many valid reasons, affecting the public welfare, which would justify the exclusion of factories, business houses, shops, and even apartment houses from strictly residential districts, but which would not apply to the use of structurally proper cottages for an orphanage.” 6 Cir., 20 F.2d 743, 745.
“Of course the line of demarcation between property to be used for industrial purposes and residence purposes is necessarily in any case somewhat arbitrary.” American Wood Products Company v. City of Minneapolis, 8 Cir., 35 F.2d 657, 661. “The property on one side of a line cannot, in the very nature of things, be very different from the property on the other side of the line.” In re Dawson, 136 Okl. 113, 116, 277 P. 226, 228. If “arbitrariness” in this sense were enough to upset a zoning regulation, no zoning could stand. Where, as here (1) plaintiffs’ land and neighboring land similarly situated are similarly zoned and (2) plaintiffs’ demand for a different zoning rests substantially on the ground^" that their location is more or less marginal and they would profit by the change, with some regularity relief has been denied. American Wood Products Company v. City of Minneapolis, 8 Cir., 35 F.2d 657; Geneva Investment Company v. City of St. Louis, Mo., 8 Cir., 87 F.2d 83; Feraut v. City of Sacramento, 204 Cal. 687, 269 P. 537. Cf. Kenealy v. Chevy Chase Land Company, 63 App.D.C. 327, 72 F.2d 378.
As the facts stated in the bill are not sufficient to show that the accused regulation is invalid it follows, of course, that the bill states no cause of action and was rightly dismissed without a hearing on the merits. Pacific States Box & Basket Company v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Feraut v. City of Sacramento, 204 Cal. 687, 269 P. 537. In Bugher v. Gottwals, 60 App.D.C., 340, 54 F.2d 451, this court reversed a decree which dismissed, without a hearing on the merits, a bill to require rezoning; but there the bill alleged, among other things, that appellants’ lots were on K Street, from 85 to 159 feet west of 16th; that while 16th was zoned residential, K was zoned commercial for five or six blocks east and five or six west of 16th, except the four corners at 16th and except appellants’ lots; and that appellants’ property had stood vacant for some time, because of the impossibility of putting it to any use whatever under existing zoning. Similarly in Dorsey v. Gotwals, 61 App.D.C. 41, 42, 57 F.2d 407, 408, this court reversed a decree which dismissed, without a hearing on the merits, a bill against the Zoning Commission, and said that the question whether the Commission’s action has some relation to the general welfare “is a question of fact which ought to receive judicial scrutiny * * * when, as is the case here, it is raised by proper averments in the bill.” The report does not show what those averments-were; but the record shows that the bill alleged, among other things, that the land immediately adjoining plaintiffs’ property on one side, and also in the rear, was zoned commercial; that the adjoining lot was occupied by a filling station which served many cars and trucks until late at night; that the business district was fast moving in plaintiffs’ direction; and that the local Citizens Association, and also the owners of 59 lots in the same or adjoining squares, had joined in plaintiffs’ request for rezoning and a public hearing had been held at which no property owner appeared in opposition. The present bill shows nothing remotely comparable to the bills in the Bugher and Dorsey Cases. And whatever inferences might once have been drawn from language in those cases, it is now clear that a bill to set aside an administrative order cannot withstand a motion to dismiss “if any state of facts reasonably can be conceived that would sustain” the order.
. While this appeal was pending, Congress revised the zoning law of the District of Columbia. We think this revision does not affect the present appeal.
Affirmed.
STEPHENS, Associate Justice.
I think sufficient is stated in the bill of complaint to require the filing of an answer by the appellees and a hearing on the merits.
For the purpose of testing the sufficiency of the bill of complaint as against a motion to dismiss, there is> a presumption of the existence of any state of facts ■which “reasonably can be conceived” that would sustain the accused administrative action. Pacific States Box & Basket Company v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853.
Appellees state in their brief that this is the fact.
Note 1, supra.
Bartholomew, Urban Land Uses, pp. 71-73; Bassett, Zoning, p. 83.
Supra, note 1.
Act of June 20, 1938, Ch. 534, 52 Stat. 797.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_casetyp1_2-2
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Gregory NEAL, Will B. Roberts, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. IAM LOCAL LODGE 2386, The International Association of Machinists and Aerospace Workers, A.F. of L.C.I.O., et al., Defendants-Appellees.
No. 82-4418
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 12, 1984.
Gregory E. Neal, pro se.
Will B. Roberts, pro se.
Jones, Maples & Lomax, Ransom P. Jones, III, Pascagoula, Miss., for defendants-appellees.
Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.
REAVLEY, Circuit Judge:
This is an action brought by appellants Gregory E. Neal and Will B. Roberts under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976). The district court dismissed their claims with prejudice on separate procedural grounds. We reverse.
I. Facts
Appellant Neal was discharged by his employer on February 14, 1980. He filed several grievances with his union, The International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 2386 (the Union), the last of which was filed on about October 25, 1980. Finding no relief, Neal filed a charge against the Union with the Equal Employment Opportunity Commission (EEOC) on February 10, 1981. The EEOC reached its determination and issued Neal his notice of right to sue on June 19, 1981. On September 18, 1981, Neal filed with the district court clerk his original notice of right to sue and copies of his EEOC charge and of the EEOC’s determination in his case. He also filed a financial affidavit and a letter to the clerk stating that he was seeking appointment of counsel.
Several months later, on December -2, 1981, the magistrate issued an opinion finding that Neal was not entitled to appointment of counsel and giving him thirty days in which to file a complaint and pay the appropriate filing fee. Neal filed objections to the magistrate’s decision on January 4, 1982. He provided new financial information, listed the lawyers whom he had tried to retain, and disputed the denial of appointed counsel. The magistrate responded on January 15, 1982 by confirming his original decision and giving Neal another thirty days in which to file his complaint and pay the appropriate filing fees.
Neal filed a two-count complaint on February 11, 1982; service was accomplished, and the several named defendants answered jointly on March 9, 1982. The record does not reveal whether plaintiff paid the appropriate fee at the time he filed his complaint. On March 5, 1982, however, Neal apparently filed a second financial affidavit and an explanatory attachment. No motion accompanied these documents, but the magistrate apparently took them to represent another attempt to proceed without payment of fees and to obtain appointment of counsel. On May 17, 1982, the magistrate denied the request, so construed, and gave Neal yet another thirty days “to properly institute suit” by filing a complaint and paying the appropriate filing fee. Neal filed a pleading June 11,1982 informing the court that he had filed a complaint on February 11, 1982, that he had paid the appropriate fee at that time, and that the second affidavit was filed only to show his changed financial circumstance in an effort to persuade the court to appoint counsel.
Appellant Roberts was discharged on May 11, 1981. Like Neal, Roberts filed a grievance with the Union, but to no avail. On August 18, 1981, Roberts filed a charge against the Union with the EEOC. The record does not reveal the eventual disposition of this charge. In any event, Roberts joined with Neal in the complaint filed February 11, 1982. The complaint alleged that Roberts had filed a charge with the EEOC but had “not yet received notice of [its] determination.”
The defendants moved to dismiss the complaint, and the district court dismissed the claims of both plaintiffs with prejudice on September 16,1982. The court held that Neal failed to file suit within ninety days of the day he received notice of right to sue since he failed to commence the action by filing a complaint within that time. Roberts, on the other hand, had filed too early, before receiving his notice of right to sue from the EEOC. Both plaintiffs appeal.
II. Gregory E. Neal
This court has approved the view that “in the special context of Title VII, the statutory requirement that an action be ‘brought’ within the time period is satisfied by presenting a right-to-sue letter to the court and requesting appointment of counsel.” Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 546 (5th Cir.1978); accord Wingfield v. Goodwill Industries, 666 F.2d 1177, 1179 n. 3 (8th Cir.1981). Wrenn expressly rejected a strict application of Rule 3, Fed.R.Civ.P., because Title VII’s procedure for appointment of counsel visits the responsibility of commencing a Title VII action on “laymen unlettered in the law.” 575 F.2d at 546. We also held in Wrenn that timely payment of a filing fee is not a jurisdictional requisite. Id. at 547. Accordingly, Neal commenced his action within the statutory time by filing with the district court a copy of his notice of right to sue and a request for appointment of counsel. Thereafter, the magistrate granted him several extensions of time in which to file a formal complaint and pay the filing fee. Although Neal missed one of these deadlines by a few days, his prosecution of this case did not even approach the “clear record of delay or contumacious conduct” necessary to support dismissal under Rule 41(b), Fed.R.Civ.P. Wrenn, 575 F.2d at 546; Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir.1976).
III. Will B. Roberts
Appellant Roberts’ procedurally fatal error was in filing his claim too early, before receiving his right-to-sue letter from the EEOC. “[Rjeceipt of statutory notice of the right to sue is not a jurisdictional prerequisite, which if not satisfied deprives courts of subject matter jurisdiction; rather, the receipt of a right-to-sue letter is a condition precedent, which on proper occasion may be equitably modified.” Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215-19 (5th Cir.) (per curiam) (Unit B), cert. denied, - U.S. -, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983); McKee v. McDonnell Douglas Technical Services Co., 705 F.2d 776 (5th Cir.1983) (on rehearing). See Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The EEOC’s statutory 180 days apparently expired in Roberts’ case only three days after he joined in the February 11, 1981 complaint. We cannot determine whether the EEOC has yet processed Roberts' claim and issued a right-to-sue letter. If it has, then Roberts may proceed in this action, Pinkard, 678 F.2d at 1219; if not, he may demand that the EEOC issue the letter and then he may proceed in this action. 29 C.F.R. § 1601.28 (1983).
IV. Failure to Appoint Counsel
Title VII authorizes district courts, upon application and “in such circumstances as the court may deem just,” to appoint counsel to represent Title VII plaintiffs and to authorize commencement of the action without payment of fees. 42 U.S.C. § 2000e-5(f)(l) (1976). In Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir.1977), we suggested several factors relevant to determining whether to appoint counsel. They included the probable success of the Title VII claim, the efforts taken by plaintiffs to retain counsel, and plaintiffs’ financial ability. Id. at 1309-10.
Upon review of the record, including appellant Neal’s financial affidavits, we could not say that the magistrate abused his discretion in denying Neal’s original application for appointment of counsel. ’ The first affidavit reflected a monthly income of $1435.20, a savings account of “about $2000,” and no effort on Neal’s part to retain an attorney. By the time he filed the second affidavit, however, Neal was in far worse economic straits. He had lost his job and therefore his monthly income, his monthly bills of $432 remained, and his savings were depleted. He had also listed in his objections to the magistrate’s first decision his many unsuccessful attempts to hire a lawyer. Two of the three Caston factors therefore pointed toward appointment of counsel.
The major claim asserted in this complaint is that the Union discriminated against black members in matters of representation, including the processing of grievances. 42 U.S.C. § 2000e-2(c) (1976). The EEOC found no reasonable cause to believe that the allegation of discrimination was true. In denying Neal’s request for counsel the first time, the magistrate considered the EEOC’s determination to “weigh heavily in the scales against” appointment of counsel. We recognized in Caston that the EEOC’s determination is not to be ignored in deciding whether to appoint counsel. 556 F.2d at 1309. We also held, however, that it was not to be given preclusive effect. “[A] finding that the EEOC determination is supported by substantial evidence in the investigative file and that plaintiff’s objections thereto are patently frivolous would weigh heavily in the scales against appointing an attorney.” Id. The magistrate in this case did nothing more than review the allegations in the complaint. In light of our disposition of the appeal on the merits, we vacate the magistrate’s order denying appointment of counsel and instruct a reconsideration of the application in light of current circumstances.
The judgment of the district court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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sc_lcdispositiondirection
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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
BELL v. CONE
No. 04-394.
Decided January 24, 2005
Per Curiam.
The United States Court of Appeals for the Sixth Circuit granted a writ of habeas corpus to respondent Gary Bradford Cone after concluding that the “especially heinous, atrocious, or cruel” aggravating circumstance found by the jury at the sentencing phase of his trial was unconstitutionally vague, and that the Tennessee Supreme Court failed to cure any constitutional deficiencies on appeal. 359 F. 3d 785, 799 (2004). Because this result fails to accord to the state court the deference required by 28 U. S. C. § 2254(d), we grant the petition for certiorari and respondent’s motion to proceed in forma pauperis and reverse.
I
Respondent killed Shipley Todd, 93, and his wife Cleopatra, 79, on August 10,1980, in their home at the conclusion of a 2-day crime spree. The killings were accomplished in a brutal and callous fashion: The elderly victims were “repeatedly beaten about the head until they died,” State v. Cone, 665 S. W. 2d 87, 90-91 (Tenn. 1984), and their bodies were subsequently discovered “horribly mutilated and cruelly beaten,” id., at 90. A Tennessee jury convicted respondent of, inter alia, two counts of murder in the first degree and two counts of murder in the first degree in the perpetration of a burglary. At the conclusion of the penalty phase of respondent’s trial, the jury unanimously found four aggravating circumstances and concluded that they outweighed the mitigating evidence. Respondent was sentenced to death.
The Tennessee Supreme Court affirmed respondent’s convictions and sentence. Id., at 96. As relevant here, the court held that three of the aggravating circumstances found by the jury “were clearly shown by the evidence.” Id., at 94. With respect to the jury’s finding that the murders were “especially heinous, atrocious, or cruel,” the court said:
“The jury also found that the murders in question were especially heinous, atrocious, or cruel in that they involved torture or depravity of mind as provided in [Tenn. Code Ann.] § 39—2—203(i)(5). The evidence abundantly established that both of the elderly victims had been brutally beaten to death by multiple crushing blows to the skulls. Blood was spattered throughout the house, and both victims apparently had attempted to resist, because numerous defensive wounds were found on their persons. The only excuse offered in the entire record for this unspeakably brutal conduct by the accused was that these elderly victims had at some point ceased to ‘cooperate’ with him in his ransacking of their home and in his effort to flee from arrest. As previously stated, it was stipulated by counsel for [respondent] that there was no issue of self-defense even remotely suggested. The deaths of the victims were not instantaneous, and obviously one had to be killed before the other. The terror, fright and horror that these elderly helpless citizens must have endured was certainly something that the jury could have taken into account in finding this aggravating circumstance.” Id., at 94-95.
Respondent twice sought relief from his conviction and sentence in collateral proceedings in state court, to no avail. In his second amended petition for postconviction relief, respondent raised 52 independent claims of constitutional error, including a contention that the “especially heinous, atrocious, or cruel” aggravating circumstance was unconstitutionally vague under the Eighth Amendment. The state trial court held each of respondent’s claims barred by Tenn. Code Ann. §40-30-111 (1990), which limited the grounds that may be raised on collateral review to those not waived or previously determined in previous proceedings. The trial court explained that respondent’s constitutional challenge to the “heinous, atrocious, or cruel” aggravating circumstance, along with many other claims, was “clearly [a] re-statemen[t] of previous grounds heretofore determined and denied by the Tennessee Supreme Court upon Direct Appeal or the Court of Criminal Appeals upon the First Petition.” Cone v. State, No. P-06874 (Tenn. Crim. Ct., Dec. 16, 1993), p. 6. The Tennessee Court of Criminal Appeals affirmed the denial of relief on all grounds. Cone v. State, 927 S. W. 2d 579, 582 (1995). The State Supreme Court denied respondent permission to appeal.
II
In 1997, respondent sought a writ of habeas corpus under 28 U. S. C. § 2254 in the United States District Court for the Western District of Tennessee, again asserting a multitude of claims. The District Court denied relief; it held respondent’s vagueness challenge to the “especially heinous, atrocious, or cruel” aggravating circumstance to be procedurally barred by respondent’s failure to raise it on direct appeal in state court. The Court of Appeals for the Sixth Circuit subsequently held that respondent was entitled to relief on another ground and did not consider respondent’s challenges to the aggravating circumstances found by the jury. Cone v. Bell, 243 F. 3d 961, 975 (2001). We reversed that judgment. Bell v. Cone, 535 U. S. 685, 702 (2002).
On remand, the same panel of the Sixth Circuit again granted respondent a writ of habeas corpus, this time with one judge dissenting, on the ground that the “especially heinous, atrocious, or cruel” aggravator was unconstitutionally vague under the Eighth Amendment. The court first rejected petitioner’s argument that respondent proeedurally defaulted the claim in state court. Based on its understanding of state law, the court concluded that the State Supreme Court’s statutorily .mandated review of each death sentence, see Tenn. Code Ann. § 39-2-205(c)(1) (1982), necessarily included the consideration of constitutional deficiencies in the aggravating circumstances found by the jury and therefore that the issue was “fairly presented” to the state court, even if respondent did not raise it himself. 359 F. 3d, at 791-793. Judge Norris dissented on this point. Id., at 806.
Turning to the merits, the Sixth Circuit held that the state court’s affirmance of respondent’s sentence in light of the “especially heinous, atrocious, or cruel” aggravating circumstance was “contrary to” the clearly established principles set forth in our decision in Godfrey v. Georgia, 446 U. S. 420 (1980). The Court of Appeals allowed that “[n]o Supreme Court case has addressed the precise language at issue,” 359 F. 3d, at 795, and that no “Supreme Court decisio[n] is ‘on all fours’ with the instruction in Cone’s case,” id., at 796, but nevertheless concluded, in light of Godfrey and the series of cases that followed it, Maynard v. Cartwright, 486 U. S. 356 (1988), Walton v. Arizona, 497 U. S. 639 (1990), and Shell v. Mississippi, 498 U. S. 1 (1990) (per curiam), that federal law dictated the conclusion that the State’s “especially heinous, atrocious, or cruel” aggravator was unconstitutionally vague. 359 F. 3d, at 797. Lastly, the court rejected petitioner’s argument that the Tennessee Supreme Court cured any deficiency in the aggravating circumstance on direct appeal by reviewing the jury’s finding under the narrowed construction of the aggravator that it adopted in State v. Dicks, 615 S. W. 2d 126 (1981). 359 F. 3d, at 797.
hH t-H
A federal court may grant a writ of habeas corpus based on a claim adjudicated by a state court if the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). A state court’s decision is “contrary to . . . clearly established Federal law” “if the state court applies a rule that contradicts the governing law set forth in our cases,” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Williams v. Taylor, 529 U. S. 362, 405 (2000).
The law governing vagueness challenges to statutory aggravating circumstances was summarized aptly in Walton, supra, overruled on other grounds, Ring v. Arizona, 536 U. S. 584 (2002):
“When a federal court is asked to review a state court’s application of an individual statutory aggravating or mitigating circumstance in a particular case, it must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, i. e., whether they provide some guidance to the sentencer.” Walton, supra, at 654.
These principles were plain enough at the time the State Supreme Court decided respondent’s appeal. In Proffitt v. Florida, 428 U. S. 242 (1976), we upheld the aggravating circumstance that the murder was “ ‘especially heinous, atrocious, or cruel’ ” on the express ground that a narrowing construction had been adopted by that State’s Supreme Court. Id., at 255 (joint opinion of Stewart, Powell, and Stevens, JJ.). And, in Gregg v. Georgia, 428 U. S. 153 (1976), we refused to invalidate the aggravating circumstance that the murder was “‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,’ ” because “there [was] no reason to assume that the Supreme Court of Georgia will adopt ... an open-ended construction” that is potentially applicable to any murder. Id., at 201 (joint opinion of Stewart, Powell, and Stevens, JJ.). See generally Lewis v. Jeffers, 497 U. S. 764, 774-777 (1990) (reviewing eases).
Indeed, in Godfrey, 446 U. S. 420, the case on which the Court of Appeals relied in declaring the aggravating circumstance to be unconstitutionally vague, the controlling plurality opinion followed precisely this procedure. Like the court below, the plurality looked first to the language of the aggravating circumstance found by the jury and concluded that there was “nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Id., at 428. But the plurality did not stop there: It next evaluated whether the Georgia Supreme Court “applied a constitutional construction” of the aggravating circumstance on appeal. Id., at 432. Because the facts of the case did not resemble those in which the state court had previously applied a narrower construction of the aggravating circumstance and because the state court gave no explanation for its decision other than to say that the verdict was “ ‘factually substantiated,’ ” the plurality concluded that it did not. Id., at 432-433. As we have subsequently explained, this conclusion was the linchpin of the Court’s holding: “Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey’s death sentence, notwithstanding the failure to instruct the jury on that narrowing construction.” Lambrix v. Singletary, 520 U. S. 518, 531 (1997). See also Walton, supra, at 653-654; Cartwright, supra, at 363-365 (refusing to countenance the Oklahoma Court of Criminal Appeals’ affirmance of a death sentence based on a facially vague aggravating circumstance where that court had not adopted a narrowing construction of its aggravator when it affirmed the prisoner’s sentence).
In this case, however, the Sixth Circuit rejected the possibility that the Tennessee Supreme Court cured any error in the jury instruction by applying a narrowing construction of the statutory “heinous, atrocious, or cruel” aggravator. The court asserted that the State Supreme Court “did not apply, or even mention, any narrowing interpretation or cite to [sic] Dicks,” the case in which the State Supreme Court had adopted a narrowing construction of the aggravating circumstance. 359 F. 3d, at 797. “Instead,” the court said, “the [state] court simply, but explicitly, satisfied itself that the labels ‘heinous, atrocious, or cruel/ without more, applied to [respondent’s] crime.” Ibid.
We do not think that a federal court can presume so lightly that a state court failed to apply its own law. As we have said before, § 2254(d) dictates a “ ‘highly deferential standard for evaluating state-court rulings, Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U. S. 19, 24 (2002) (per curiam). To the extent that the Court of Appeals rested its decision on the state court’s failure to cite Dicks, it was mistaken. Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation. See Mitchell v. Esparza, 540 U. S. 12, 16 (2003) (per curiam); Early v. Packer, 537 U. S. 3, 8 (2002) (per curiam).
More importantly, however, we find no basis for the Court of Appeals’ statement that the state court “simply, but explicitly, satisfied itself that the labels ‘heinous, atrocious, or cruel/ without more, applied” to the murder. 359 F. 3d, at 797. The state court’s opinion does not disclaim application of that court’s established construction of the aggravating circumstance; the only thing that it states “explicitly” is that the evidence in this case supported the jury’s finding of the statutory aggravator. See Cone, 665 S. W. 2d, at 95 (stating that the aggravating circumstance was “indisputably established by the record”). As we explain below, the State Supreme Court had construed the aggravating circumstance narrowly and had followed that precedent numerous times; absent an affirmative indication to the contrary, we must presume that it did the same thing here. See Visciotti, supra, at 24 (stating the presumption that state courts “know and follow the law”); Lambrix, supra, at 532, n. 4; Walton, 497 U. S., at 653. That is especially true in a case such as this one, where the state court has recognized that its narrowing construction is constitutionally compelled and has affirmatively assumed the responsibility to ensure that the aggravating circumstance is applied constitutionally in each case. See State v. Pritchett, 621 S. W. 2d 127, 139, 140 (Tenn. 1981).
Even absent such a presumption in the state court’s favor, however, we would still.conclude in this case that the state court applied the narrower construction of the “heinous, atrocious, or cruel” aggravating circumstance. The State Supreme Court’s reasoning in this case closely tracked its rationale for affirming the death sentences in other eases in which it expressly applied a narrowed construction of the same “heinous, atrocious, or cruel” aggravator. Accord, Godfrey, supra, at 432 (holding that “[t]he circumstances of this case ... do not satisfy the criteria [for torture] laid out by the Georgia Supreme Court itself” in its cases construing the aggravating circumstance). The facts the court relied on to affirm the jury’s verdict — that the elderly victims attempted to resist, that their deaths were not instantaneous, that respondent’s actions toward them were “unspeakably brutal,” and that they endured “terror, fright and horror” before being killed, 665 S. W. 2d, at 95—match, almost exactly, the reasons the state court gave when it held the evidence in State v. Melson, 638 S. W. 2d 342, 367 (Tenn. 1982), to be sufficient to satisfy the torture prong of the narrowed “heinous, atrocious, or cruel” aggravating circumstance. See also Pritchett, supra, at 139 (finding the evidence to be insufficient to satisfy a narrowed construction of the aggravator where the victim’s death was “instantaneous”); State v. Campbell, 664 S. W. 2d 281, 284 (Tenn. 1984) (holding that evidence of the aggravator was “overwhelming” where an elderly murder victim was beaten to death with a blunt object and his hands showed that he had attempted to defend himself). Similarly, the state court’s findings that respondent’s victims had been “brutally beaten to death by multiple crushing blows to the skulls,” that “[bjlood was spattered throughout the house,” and that the victims were helpless, 665 S. W. 2d, at 94-95, accord with the reasons that the state court had previously found sufficient to support findings of depravity of mind. See Melson, supra, at 367; State v. Groseclose, 615 S. W. 2d 142, 151 (Tenn. 1981); Strouth v. State, 999 S. W. 2d 759, 766 (Tenn. 1999). In sum, a review of the state court’s previous decisions interpreting and applying the narrowed construction of the “heinous, atrocious, or cruel” aggravator leaves little doubt that the State Supreme Court applied that same construction in respondent’s case.
The only remaining question is whether the narrowing construction that the Tennessee Supreme Court applied was itself unconstitutionally vague. See Walton, supra, at 654; Godfrey, 446 U. S., at 428. It was not. In State v. Dicks, 615 S. W. 2d 126 (Tenn. 1981), the state court adopted the exact construction of the aggravator that we approved in Proffitt, 428 U. S., at 255: that the aggravator was “directed at 'the conscienceless or pitiless crime which is unnecessarily torturous to the victim,”’ Dicks, supra, at 132. See also Sochor v. Florida, 504 U. S. 527, 536 (1992). In light of Prof-fitt, we think this interpretation of the aggravator, standing alone, would be sufficient to overcome the claim that the aggravating circumstance applied by the state court was “contrary to” clearly established federal law under 28 U. S. C. § 2254(d)(1).
The State Supreme Court’s subsequent application of this aggravating circumstance, as construed in Dicks, stands as further proof that it could be applied meaningfully to narrow the class of death-eligible offenders. Later in the year that Dicks was decided, the court elaborated on the meaning of the aggravator:
“Although the Tennessee aggravating circumstances [sic] [that the murder was heinous, atrocious, or cruel] does not contain the phrase, 'an aggravated battery to the victim[,]’ it is clear that a constitutional construction of this aggravating circumstance requires evidence that the defendant inflicted torture on the victim before death or that [the] defendant committed acts evincing a depraved state of mind; that the depraved state of mind or the torture inflicted must meet the test of heinous, atrocious, or cruel.” Pritchett, 621 S. W. 2d, at 139 (citation omitted).
With respect to the meaning of “torture,” the court held that the aggravator was not satisfied where the victim dies instantly, ibid., but that it was where “the uncontradicted proof shows that [the victim] had defensive injuries to her arms and hands, proving that there was time for her to realize what was happening, to feel fear, and to try to protect herself,” Melson, 638 S. W. 2d, at 367. Accord, Cartwright, 486 U. S., at 364-365 (approving the limitation of the “heinous, atrocious, or cruel” aggravating circumstance to killings in which the victim suffered “some kind of torture or serious physical abuse” prior to the murder). As to “depravity of mind,” the court held the fact that the defendant fired a second shotgun blast into a victim after he was dead to be insufficient as a matter of law, see Pritchett, supra, at 139 (explaining that the depravity in such an action falls short of that exhibited by the defendant in Godfrey, supra), but concluded that, “a killing wherein the victim is struck up to thirty times, causing an entire room to be covered with a spray of flying blood, and causing the victim’s brains to extrude through the gaping hole in her skull,” sufficed, Melson, supra, at 367. In light of these holdings, we are satisfied that the State’s aggravating circumstance, as construed by the Tennessee Supreme Court, ensured that there was a “principled basis” for distinguishing between those cases in which the death penalty was assessed and those cases in which it was not. Arave v. Creech, 507 U. S. 463, 474 (1993).
In sum, even assuming that the Court of Appeals was correct to conclude that the State’s statutory aggravating circumstance was facially vague, the court erred in presuming that the State Supreme Court failed to cure this vagueness by applying a narrowing construction on direct appeal. The state court did apply such a narrowing construction, and that construction satisfied constitutional demands by ensuring that respondent was not sentenced to death in an arbitrary or capricious manner. See Godfrey, supra, at 428. The state court’s affirmance of respondent’s sentence on this ground was therefore not “contrary to... clearly established Federal law,” 28 U. S. C. § 2254(d)(1), and the Court of Appeals was without power to issue a writ of habeas corpus. We reverse the judgment of the Sixth Circuit and remand the case for further proceedings consistént with this opinion.
It is so ordered.
The jury found the following aggravating circumstances: (1) respondent had been convicted of one or more felonies involving the use or threat of violence to a person, (2) the murders were “especially heinous, atrocious, or cruel in that they involved torture or depravity of mind,” (3) respondent committed the murders for the purpose of preventing a lawful arrest or prosecution, and (4) respondent knowingly created a risk of death to two or more persons, other than the victim murdered, during the murder. See State v. Cone, 665 S. W. 2d 87, 94-95 (Tenn. 1984).
The state court rejected the jury’s finding that respondent “ ‘knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during his act of murder,’ ” on the ground that the considerable threat respondent posed to others earlier in the day was not sufficiently close in time to the murders. Based on the strength of the other aggravating circumstances before the jury, the court held this error to be “harmless beyond a reasonable doubt.” Id., at 95.
Petitioner argues that the Sixth Circuit’s conclusion in this regard is in tension with the decisions of other Courts of Appeals, which have held that a petitioner must raise his constitutional claim in state court in order to preserve it, notwithstanding the existence of a mandatory-review statute. See Mu’min v. Pruett, 125 F. 3d 192, 197 (CA4 1997) (Virginia); Martinez-Villareal v. Lewis, 80 F. 3d 1301, 1306 (CA9 1996) (Arizona); Kornahrens v. Evatt, 66 F. 3d 1350, 1362 (CA4 1995) (South Carolina); Nave v. Delo, 62 F. 3d 1024, 1039 (CA8 1995) (Missouri); Julius v. Johnson, 840 F. 2d 1533, 1546 (CA11 1988) (Alabama). We find it unnecessary to express a view on this point. See 28 U. S. C. § 2254(b)(2) (an application for habeas corpus may be denied on the merits, notwithstanding a petitioner’s failure to exhaust in state court). We do emphasize that, as a general matter, the burden is on the petitioner to raise his federal claim in the state courts at a time when state procedural law permits its consideration on the merits, even if the state court could have identified and addressed the federal question without its having been raised. See Baldwin v. Reese, 541 U. S. 27, 30-32 (2004).
The jury was instructed with respect to this aggravated circumstance as follows:
“ ‘Heinous’ means extremely wicked or shockingly evil.
“ ‘Atrocious’ means outrageously wicked and vile.
“ ‘Cruel’ means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless.” 359 F. 3d, at 794.
The court recognized that these cases postdated the Tennessee Supreme Court’s 1984 decision on direct appeal, but, relying on Stringer v. Black, 503 U. S. 222, 225 (1992) (which held that Cartwright did not announce a “new rule” of constitutional law because its resolution was dictated by Godfrey), concluded that these later cases were “not only material, but controlling” and required the conclusion that Tennessee’s “heinous, atrocious, or cruel” aggravating circumstance was unconstitutionally vague on its face. 359 F. 3d, at 795. We assume, without deciding, that the Court of Appeals was correct in this conclusion.
In Ring v. Arizona, 536 U. S. 584 (2002), we held that the Sixth Amendment requires a jury, rather than a judge, to find the aggravating circumstance that renders a defendant death eligible. Id., at 609. Because Ring does not apply retroactively, Schriro v. Summerlin, 542 U. S. 348, 358 (2004), this case does not present the question whether an appellate court may, consistently with Ring, cure the finding of a vague aggravating circumstance by applying a narrower construction.
We find additional support for this conclusion in the fact that respondent’s argument to the State Supreme Court relied squarely on a case in which that court had expressly formulated its narrowing construction of the aggravating circumstance and had applied that construction to the benefit of the defendant. See Brief for Appellant in No. 02C019403CR00052 (Sup. Ct. Tenn. 1983), p. 20 (arguing, based on State v. Pritchett, 621 S. W. 2d 127 (Tenn. 1981), that “the State did not show ... that the victims suffered”). Likewise, the two cases the State relied upon in response to respondent’s argument also expressly applied a narrowing construction of the “heinous, atrocious, or cruel” aggravator. See Brief for Appellee in No. 02C019403CR00052 (Sup. Ct. Tenn. 1983), p. 34 (citing Pritchett, supra, and State v. Melson, 638 S. W. 2d 342, 367 (Tenn. 1982)).
See also State v. Groseclose, 615 S. W. 2d 142, 151 (Tenn. 1981) (holding that raping and stabbing a victim, before killing her by locking her in a car trunk in the summer, satisfied the “heinous, atrocious, or cruel” aggravating circumstance); Strouth v. State, 999 S. W. 2d 759, 766 (Tenn. 1999) (quoting the State Supreme Court’s 1981 opinion denying rehearing, which held that cutting the throat of a victim already rendered unconscious demonstrated “depravity of mind” in that it was “cold-blooded, intentional, conscienceless and pitiless”); State v. Dicks, 615 S. W. 2d 126, 132 (Tenn. 1981) (affirming the jury’s application of the “heinous, atrocious, or cruel” aggravator to the same crime).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Freddie DAVIS, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
No. 83-8384.
United States Court of Appeals, Eleventh Circuit.
Sept. 30, 1987.
Rehearing and Rehearing En Banc Denied Nov. 25,1987.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.
Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellee, cross-appellant.
Before HILL and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.
HILL, Circuit Judge:
Ralph Kemp, Warden of the Georgia Diagnostic Center, appeals to this court from an order of the district court granting Freddie Davis’ petition for a writ of habeas corpus, and thus prohibiting his execution unless the state holds a resentencing hearing within 180 days. Davis has filed a cross-appeal from the order of the district court denying relief as to the other grounds set forth in his petition. We affirm the order of the district court denying relief as to the grounds raised by Davis in his cross-appeal and reverse the order granting relief on the grounds addressed by the state’s appeal.
Davis was indicted in Meriwether County, Georgia, on charges of murder and rape; at his trial in March 1977, the jury found him guilty of both crimes. At his sentencing hearing, the jury found an aggravating circumstance, see O.C.G.A. § 17-10-30(b)(2), and the judge sentenced Davis to death for the murder and life imprisonment for the rape. Davis appealed his convictions and sentence to the Georgia Supreme Court. In February 1978, that Court upheld Davis’ convictions but vacated his death sentence. See Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978). At Davis’ second sentencing hearing in May 1978, the jury found two statutory aggravating circumstances, see O.C.G.A. § 17-10-30(b)(2) & (b)(7), and the judge sentenced Davis to death. Davis appealed to the Georgia Supreme Court, which affirmed the death sentence. See Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979). The United States Supreme Court vacated the second death sentence and remanded the case to the Georgia Court for reconsideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). See Davis v. Georgia, 446 U.S. 961, 100 S.Ct. 2934, 64 L.Ed.2d 819 (1980). The Georgia Court reinstated the death sentence, see Davis v. State, 246 Ga. 432, 271 S.E.2d 828 (1980), and the Supreme Court denied certiorari. See Davis v. Georgia, 451 U.S. 921,101 S.Ct. 2000, 68 L.Ed.2d 312 (1981). Davis then filed a petition for a writ of habeas corpus in state superior court. The state court denied this petition on February 5, 1982, and the Georgia Supreme Court denied Davis’ application for a certificate of probable cause on March 24, 1982. The United States Supreme Court again denied certiorari. See Davis v. Georgia, 459 U.S. 891, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982).
On December 15,1982, Davis filed a petition for a writ of habeas corpus in federal district court. The court denied this petition on December 20, 1982. Davis, with new counsel, filed various pleadings with the district court, which he characterized as amended petitions, in an effort to raise new claims. Although the district court found the petitions to be successive and an abuse of the writ, on December 23, 1982, the court agreed to reconsider the case. On April 8, 1983, the court granted Davis the above-described partial relief.
This appeal was held in abeyance pending four en banc opinions affecting the outcome of this case. With the Supreme Court’s denial of certiorari on March 2, 1987 in Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (llth Cir.1986), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987), the appeals in these four cases became final. Accordingly, we proceed to analyze the issues set forth in Davis’ petition.
I
Davis raised three of his claims on appeal for the first time in his second federal habeas petition. The state contends that the district court improperly considered Davis’ second petition after finding it to be a successive petition and an abuse of the writ. We hold that, under the controlling case law, the district judge did not abuse his discretion in considering the issues raised in the successive petition in this case.
As the Supreme Court has stated, the district courts are responsible for
the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a. second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power— and, if the ends of justice demand, the duty — to reach the merits.
Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); see also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2625, 91 L.Ed.2d 364 (1986) (“the permissive language of § 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances”); Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B 1981). In his order, the district judge specifically cited Sanders and Potts. We thus conclude that, despite his decision that Davis had abused the writ, the district judge relied on the proper grounds in exercising his discretion, concluding that the “ends of justice” justified considering Davis’ amended petition. See Sanders, 373 U.S. at 15, 83 S.Ct. at 1077.
II
The district court granted the writ because it found the closing argument of the prosecutor at Davis’ sentencing hearing unconstitutional under our decision in Hance v. Zant, 696 F.2d 940 (11th Cir.1983). In Hance, the court found unconstitutional arguments made by the prosecutor which were similar to the arguments delivered in this case. The decision in Hance, however, has been largely overruled. Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir.1985) (en banc), vacated on other grounds, — U.S.-, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); see Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985) (en banc), cert, denied, — U.S.-, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987); Tucker v. Kemp, 762 F.2d 1496 (11th Cir.1985) (en banc).
Generally the court engages in a two step process in determining whether a habeas petitioner is entitled to relief based upon a prosecutor’s arguments. First, we consider whether the prosecutor’s arguments were improper. Second, we consider whether any arguments found improper were so prejudicial as to render the trial fundamentally unfair. As we noted in Brooks, 762 F.2d at 1400, “it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair.” The Supreme Court has recently reaffirmed the standard to be employed in reviewing a prosecutor’s argument:
The relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the re-suiting conviction a denial of due process.” Donnelly v. De Christoforo, 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id. at 642, 94 S.Ct. at 1871.
Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Applying this standard, we conclude that the prosecutor’s closing arguments did not render Davis’ trial fundamentally unfair.
Davis primarily attacks six portions of the prosecutor’s arguments which he considers unconstitutional. During the sentencing phase, the prosecutor analogized the role of the jury and the role of soldiers fighting for their country:
I know it’s difficult and an unpleasant thing. Nobody would like to recommend the death penalty for anybody else, but people, unfortunately, are faced with difficult times, having to do difficult things. Every one who goes into the armed services has a difficult duty. Oftentimes these men have to go into battle and fight and get killed although they might be opposed to the practice of killing. But, in order to protect our country and preserve it, keep it where it is and keep it free, they must occasionally go into battle and kill people. It’s the same principal that applies here, and I submit, Freddie Davis and people like him are just as much as an enemy of this country as soldiers who have fought against this country in war. In fact, even more because these soldiers are fighting for their own country.
Freddie Davis has no such motives. His motives are self-motivations, greed, lust or what have you. Let’s not feel sorry for Freddie Davis. There has been no evidence whatsoever presented by Freddie Davis to repute [sic] or dispute or rebute [sic] any evidence that we have submitted. The evidence that we have submitted must be taken as true because you have no other evidence presented to you. That’s it.
In Brooks, we found improper an argument that was similar in some respects to the argument quoted above but was in other respects more egregious. We noted that “the analogy of the death penalty to killing in a war was appropriate insofar as it implied that imposing death, while difficult, is at times sanctioned, by the state because of compelling reasons (national security or deterring crime).” 762 F.2d at 1412. We found the particular analogy drawn in Brooks to be improper, as it “undermine[d] the crucial discretionary element required by the Eighth Amendment.” Id. at 1413. In that case, however, “[t]he improper aspect of the argument was the suggestion that the jurors should forego an individualized consideration of Brooks’ case and instead choose execution because he was part of the broad ‘criminal element’ terrorizing American society.” Id. at 1414. The excerpt quoted above included no such suggestion. Instead, the prosecutor emphasized the evidence in this particular case and the duty of the jury to impose a sentence of death if they deemed it appropriate under the particular circumstances of the crime Davis committed. The prosecutor thus avoided the argument held improper in Brooks.
Also challenged is the prosecutor’s argument concerning the deterrent value of the death penalty:
We do know this, that in the last 10 or 12 years, since we haven’t had but one death penalty in the whole United States, violent crimes have increase [sic] tremendously. They are running rampant in this country. You cannot pick up the newspaper, listen to the television, or radio, read a magazine or anything about the news without reading about some vile, horrible, unspeakable crime. These crimes are happening in much more frequency now than they did while we were imposing the death penalty on people who committed these crimes. That’s just the facts of life. We do know that this is happening.
This argument was not improper. Arguments by the prosecutor that the death penalty serves as a deterrent are proper. Brooks, 762 F.2d at 1407 (“In deciding whether to impose the death penalty in a particular case, it is appropriate for a jury to consider whether or not the general deterrence purpose of the statute is served thereby.”); Drake, 762 F.2d at 1449; Tucker, 762 F.2d at 1484; Tucker, 762 F.2d at 1505; Collins v. Francis, 728 F.2d 1322, 1339 (11th Cir.1984). One of the stronger arguments relied upon by defense attorneys during the sentencing phase of a death case is that nothing would be served by taking the defendant’s life. The prosecutor is permitted to rebut such an argument. The constitution does not require one-sideness in favor of the defendant.
Davis contends the prosecutor’s arguments are presumably based on studies not in evidence. In Brooks, the prosecutor was permitted to argue that the increasing crime rate had been produced by the state’s failure to have executed anyone in recent years. Reference to the increasing crime rate was permissible without statistical proof, because such information was within the common knowledge of jurors. Implicit within the state legislature’s decision to enact a death penalty statute is the determination that the death penalty serves valid purposes of deterrence and retribution. Thus, the court in Brooks concluded that: “[t]he prosecutor need not adduce evidence... to prove the link between death and deterrence. An argument... urging jurors to consider the deterrent effect of the penalty is not improper.” Brooks, 762 F.2d at 1409.
Retribution is also a permissible factor which the jury may consider in imposing death. Brooks, 762 F.2d at 1407; Tucker, 762 F.2d at 1484; Tucker, 762 F.2d at 1505. The prosecutor’s arguments seeking to justify the execution of Freddie Davis based upon society's legitimate interest of purging itself of this wrong was a permissible argument. The prosecutor made the following argument:
But, by feeling sorry for him, we neglect and overlook another aspect of the case. We completely ignore and neglect and overlook what happened to Miss Coe. What happened to her? For 35 or 40 minutes these people were in her house in which she was undergoing tortures that we can’t imagine. We can’t imagine what happened to her. No one within his wildest dreams can imagine what she went through. This type of sympathy directed toward Freddie Davis, ladies and gentlemen is false sympathy because it only looks at one side of the coin. One side of the story. To ignore Frances Coe and feel only for this defendant, I submit, would be a disgrace and an injustice and an outrage. That people can commit crimes like this in this country and not receive the punishment that they deserve is a disgrace and an outrage. Something this whole country has to be ashamed of, and ladies and gentlemen, I submit one of the main reasons that we have so many crimes like this in this country and we have them because of sympathy on the part of jurors toward people who commit the crime.
This argument was merely an effective means of emphasizing the purposes of retribution and deterrence served by this statute. The prosecutor also invoked both general and specific deterrence again in his conclusion:
The death penalty is called for. Ask yourselves this question, how would you feel living in this community if you looked out of your window one night and saw Freddie Davis walking down the street coming up toward your house. If that wouldn’t put a feeling of cold terror in your heart, what would?
One thing and one thing only will stop or reduce this type of crime from happening is that jurors must do their duty and stand up and be counted and tell Freddie Davis and people like him that they have had enough. That we are going to execute you if you participate in crimes like this. If you don't do it, why should they ever stop doing it? Why should they? If you are not willing to impose the death penalty in this case or cases like this, what will ever stop these people from committing these types of horrible, unspeakable crimes.
In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court held that the future dangerousness of a defendant is a proper consideration in imposing death. See Tucker, 762 F.2d at 1507; Bowen v. Kemp, 769 F.2d 672, 679 (11th Cir.1985). In the above quoted excerpt, the prosecutor dramatically illustrated this future dangerousness. In Brooks, the prosecutor brought this very matter home to the jury by asking, “Who’s daughter will be killed next?” We found such an argument to be constitutional, concluding that: “A legitimate future dangerousness argument is not rendered improper merely because the prosecutor refers to possible victims.” Brooks, 762 F.2d at 1412. The argument made in this case is no more emotion laden than the imagery created by the prosecutor in Brooks.
Davis also attacks two portions of the prosecutor’s arguments which he argues tend to lessen the jury’s role in the sentencing process. The prosecutor argued:
This is an important task. It’s a task that only the jury can decide. This is a task, a decision, that is so important that only the people, the people themselves, can decide this. The people decide this in the person of your twelve citizens picked from this county, twelve upstanding, intelligent citizens, as the law requires and decide what you think should be done. Punishment can’t be decided by the Sheriff. You can’t blame him if the person doesn’t get the electric chair. You can’t blame the judge if he doesn’t give him the electric chair, you can’t blame the District Attorney or the Governor or the GBI. The Governor doesn’t sentence, nor the State Legislature or the State Appeal Court or anybody else. This decision, what a sentence will be, is to be decided by a jury and only be decided by you, by this jury.
A similar argument was made toward the conclusion of the prosecutor’s argument:
What this case comes down to is a question of duty. You must do your duty as you see fit as the citizens of this country. And I — this is a difficult thing to do at times. Everyone else has had a duty in this case. The other people have done their duty as well as they saw fit. The citizens who found Miss Coe, found her body, they did their duty by bringing this to light. The officers, GBI, the Sheriff's office, Sheriff Branch, Mr. Bert Davis, they did their duty as well as it could be done, and we are very fortunate, ladies and gentlemen, to have people like this working for you. I think you realize that. All the witnesses who testified in the case, officers, or people reported the crime or Crime Lab — the Crime Lab did its duty and they did their duty by performing the tests that they did and coming and testifying about it. The Grand Jury did its duty by returning an indictment. The Judge did his duty deciding on the legal points that came up and with intelligence. The juries — first jury did its duty by finding this one guilty of the offenses that he committed. I have attempted to do my duty by trying to bring the truth out to you and let you know what happened. It’s your duty and nobody else’s you can’t delegate it to anyone else. No one else but you and your duty is clear, and to not find — not recommend the death penalty is to leave your duty undone and only halfway complete this case.
These arguments bear some resemblance to an argument made by the prosecutor in Tucker v. Kemp, 762 F.2d 1480 (11th Cir. 1985):
[The defense attorney will] mention that, well, can you sleep well if this man is executed? Won’t it bother you if you ever read about it or hear about it whenever it happens? But I for one want to tell you that you are not the ones who did it if he is executed. It does not rest on your shoulders, ladies and gentlemen. Policemen did their duty and they went out and made the case. The grand jury down there did its duty and it indicted him and charged him with these horrible offenses. The district attorney’s office prosecuted the case, located the witnesses, and brought them in. The judge, the court came in and presided at the trial. And ladies and gentlemen, you are the last link in this thing, and if this man suffers the death penalty it’s no more up to you than it is to anybody else, the grand jury or the police, or the district attorney’s office. All of us are coming in and doing our duty.
In Tucker, the Court concluded that such an argument was improper because it “suggested] that the jury is only the last link in a long decision” to impose death and therefore trivializes the jury’s importance. Tucker, 762 F.2d at 1485-86.
In Brooks v. Kemp, the en banc court also considered a prosecutor’s argument which is remarkably similar to the argument made in the present case:
Now I’m sure another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it’s rough, it would be hard for me to do. Can I take somebody’s life? Well the truth, you’re not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they’re not taking his life; the Recorder’s Court Judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible for taking his life? Of course not. How about the Grand Jury who listened to the evidence and indicted him for murder; are the Grand Jurors responsible for his life, can you say they’re about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we’re here now asking you to bring back the death penalty, do we feel responsible? I don’t. I don’t think anybody in my office does. How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that's when he took his own life. He’s a grown man, and he knew what he was doing.
This argument was found to be proper because it did not minimize the role of the jury as the prosecutor had sought to do in Tucker, rather the argument emphasized the responsibility of the jury. In the present case, the prosecutor’s arguments are more closely analogous to the argument made in Brooks rather than the argument used by the prosecutor in Tucker. Here, the jury was instructed as to the importance of its task. The prosecutor informed the jury that they alone could determine the appropriate sentence and that this task could not be delegated.
In Dutton v. Brown, 788 F.2d 669, 675 (10th Cir.1986) the United States Court of Appeals for the Tenth Circuit considered a prosecutor’s argument which informed the jury that they were not “functioning as individuals” but functioning as part of the legal system in the same manner that the judge and district attorney performed their roles within this system. The court held that such an argument did not diminish the jury’s responsibility:
[T]he statement of the prosecutor was not constitutionally impermissible. The statement was not designed to, nor did it, suggest to the jury that it was not ultimately responsible for deciding [the defendant’s] punishment. The prosecutor merely underscored that the jury was part of the whole system of justice, and within that system it had a grave responsibility.
The same must be said concerning the arguments delivered in this case. It certainly was not improper for the prosecutor to argue that the jury should return a verdict of death in this particular case. Accordingly, the argument by the prosecutor in this case was proper.
Finally, even if we were to find the prosecutor’s argument to be improper, Davis’ sentencing proceeding was not rendered fundamentally unfair. In Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985), the court concluded that the prosecutor’s “last link” argument was improper but proceeded to find the argument was not so egregious as to create a constitutional error. The decision in Tucker, however, was vacated and remanded by the Supreme Court in light of the Supreme Court’s subsequent decision in Caldwell v. Mississippi, 472 U.S. 320, 105 5. Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the court reversed a death sentence where the jury was informed that a sentence of death is not final and the sentence would be subject to automatic review by the State Supreme Court. In so ruling, the Court, per Justice Marshall, wrote:
In this case, the state sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eight Amendment requires.
Id., 105 S.Ct. at 2646. On remand, the Tucker court concluded that its previous holding was consistent with Caldwell. Tucker v. Kemp, 802 F.2d 1293 (11th Cir. 1986) (en banc), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987). The court noted that “[vjiewing the entire sentencing proceeding, there can be little doubt that the jury understood it had the sole responsibility to determine the sentence to be received by petitioner.” Id. at 1296; see also Coleman v. Brown, 802 F.2d 1227, 1238 (10th Cir.1986) (“[W]e do not find that this ‘last link’ remark made during the guilt stage of the trial — even taken together with the prosecutor’s persistent attempts to evoke sympathy for [the] victims and his comments on matters not in evidence — rose to the level of constitutional error.”). In the present case, the prosecutor’s closing arguments repeatedly emphasized the role played by the jury. The prosecutor began by informing the jury that only they could impose death. Later in his argument, the prosecutor commented:
If you think that the aggravated circumstances are there, but you think he should get life, then, that’s your prerogative and you can give him life. It’s totally your decision.
Defense counsel began his arguments by commenting upon the “very awesome responsibility” to which the prosecutor had referred. Furthermore, the judge informed the jury it had the discretion of imposing life even if the statutory aggravating factors were proven beyond a reasonable doubt. In light of these circumstances, we conclude that “the jury was fully apprised of and appreciated the decision that it alone had to make — whether to impose a sentence of death or one of life imprisonment.” Tucker, 802 F.2d at 1297. The sentencing proceeding was not fundamentally unfair.
Ill
Davis argues that, given the facts and procedural posture of his case, he should not have been put on trial again for his life. He contends that the evidence produced at his guilt/innocence trial failed to demonstrate beyond a reasonable doubt that he committed the offense of rape. At Davis’ first sentencing hearing, the state relied on only the subsection (b)(2) aggravating circumstance — murder committed in connection with the rape. Thus, Davis argues that the state could not resentence him to death after his first sentencing hearing because, given the lack of evidence to prove the rape, the double jeopardy clause bars placing him again on trial for his life. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). We will consider the constitutional validity of both his rape conviction and his resentencing together.
When a habeas petitioner raises a sufficiency of the evidence claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). At trial, the state produced evidence that the victim had been forcibly assaulted around the vaginal area. Although the medical examiner testified that he found no sperm and only trace elements of seminal fluid, the position of the victim’s body — sweater open, slip pulled up, pantyhose and panties pulled down — was entirely consistent with the jury’s conclusion that a rape occurred. Davis argues that the injury could have been accomplished with a foreign object such as a stick. Although this may be true, a reasonable juror could have found beyond a reasonable doubt that the victim was raped.
Davis argues that, although a juror could conclude that the victim was raped, the state introduced no evidence tending to show that Davis, as opposed to his co-defendant Spraggins (who was tried separately), committed the crime. We agree that the state failed to exclude all doubt that Davis, as a principal, committed the rape himself; however, the evidence clearly placed him in the victim’s house at the time of the crime. Although both Davis and Spraggins testified that the victim was not raped (assertions controverted by the evidence), Spraggins testified that Davis was not only present during the crime but that Davis instructed Spraggins as to how next to torture and kill the victim. Davis had a cut on his hand; and blood matching Davis’ blood type, but not Spraggins’, was found in the victim's bedroom and in other portions of the house. Given this evidence, the jury properly could decide that either Davis or Spraggins raped the victim and that the other participated as an aider and abetter, thus making him guilty as a principal under O.C.G.A. § 16-2-20. The judge gave the appropriate jury charge. Thus, we reject both Davis’ contention that his rape conviction lacks validity and his contention that the invalidity voids his death sentence.
IV
In a somewhat related claim, Davis next argues that the double jeopardy clause, as construed in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), prevents the state from relying on an aggravating circumstance to support his death sentence at his second sentencing hearing (the subsection (b)(7) circumstance) not relied on at his first sentencing hearing. Davis is not entitled to relief on this claim. The recent Supreme Court decision in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), disposes of this issue.
In Poland, the trial judge had found as an aggravating factor that the murder was “especially heinous, cruel, or depraved,” and imposed a sentence of death. The judge, however, concluded that the crime did not fall within the “pecuniary gain” aggravating circumstance because the murder was not a contract killing. The Arizona Supreme Court found the evidence insufficient to support a finding that the murder was especially heinous; the court, however, concluded that the trial judge could have found that the crime was committed for pecuniary gain. At Poland's second sentencing, the prosecution presented additional evidence as to the “especially heinous” and “pecuniary gain” aggravating factors. The prosecutor also introduced evidence concerning a third aggravating circumstance — conviction of a previous violent felony. At the second sentencing, the trial judge found all three aggravating circumstances present and resentenced Poland to death. The Supreme Court held that the reimposition of the death penalty was not precluded by the Double Jeopardy Clause. Concluding that the defendant had never been “acquitted” of the death penalty, the court noted that the prosecutor was writing upon a “clean slate” in seeking a sentence of death at the second sentence hearing. The Supreme Court stated:
We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an “acquittal” of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has “decided that the prosecution has not proved its case”
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_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.
DOWLING v. WESTERN UNION TEL. CO. WESTERN UNION TEL. CO. v. DOWLING.
Nos. 3253, 3254.
Circuit Court of Appeals, First Circuit.
Nov. 9, 1937.
Charles Ingram and Ingram & Ingram, all of Lynn, Mass., for James Dowling.
Arthur P. Hardy, of Boston, Mass. (Hardy, Hall & Iddings, of Boston, Mass., and Francis R. Stark, of New York City, on the brief), for Western Union Telegraph Company.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
These are cross-appeals in an action brought by Dowling, whom we shall refer to as the plaintiff, against the telegraph company to recover damages for its failure to deliver a message sent to him by one Deshler. The District Judge instructed the jury that the plaintiff could in no event recover more than $500, the limitation on damages for unrepeated messages under the regulations of the defendant approved by the Public Utilities Commission. The defendant requested the court to rule that the plaintiff could recover only nominal damages. The plaintiff obtained a verdict for $500 limited in accordance with the instruction. The defendant appeals from the refusal to rule that only nominal damages were recoverable; the plaintiff appeals from the ruling limiting the amount of his recovery.
The plaintiff’s evidence showed the following facts: He was by occupation a baker and at the time in question was out of employment. Accompanied by his friend Deshler he called on the proprietor of a bakery in Franklin, Mass., looking for work. The three discussed the employment of the plaintiff to take the place of another baker then working there whose services were to be terminated. -During the conversation the proprietor stated that he was willing to pay $40 per week for the services of a baker. Shortly afterwards the proprietor notified Deshler that the expected vacancy had occurred and that he was ready to employ another baker. Desh-le‘r thereupon telephoned to an office of the defendant the message to the plaintiff on which this action is based. At that time he notified the defendant’s clerk who accepted the message that it was being sent to a friend who had an opportunity of employment as a baker, and that it was essential that the message be delivered as soon as possible. It was sent as a straight unrepeated message. It read “Call Charlie Deshler at once Blue .Hills 0820 (signed) Charlie.” This message was not delivered. The proprietor of the bakery testified that after waiting two days to hear from Desh-ler he hired another man; and that he has continued in the same business ever since. There was no direct evidence as to how long or for what period of time the plaintiff'would have been employed if he had promptly applied for and received employment as a baker in the bakery at Franklin. The plaintiff testified that he had been unable to obtain steady employment iip to the time of the trial.
As to the defendant’s appeal: The defendant’s liability depends on the character of the message sent. Obviously it was not an offer of employment from the proprietor of the bakery. An understanding may be implied from the circumstances that the proprietor of the bakery intended Deshler to inform the plaintiff.of the vacancy, but no offer of employment was made to the plaintiff through Deshler. The most that could be said was that if Deshler should inform the plaintiff of the vacancy and if the plaintiff should apply for the place his application would be favorably considered. The nondelivery of the telegram prevented the plaintiff from making the application.
The case is by no means of the first impression, many similar ones have arisen. The law is well settled that where a telegraph message relates to a proposed contract between plaintiff and another person, but is neither an acceptance of a previous offer nor itself a definite offer, but only an invitation to submit an offer or to meet or correspond with the sender for the purpose of further negotiation, the failure duly to deliver the message is not, as a matter of law, the proximate cause of the failure of the negotiations to result in a binding contract; and, damages for the loss of a contract which might or might not have resulted from further negotiations .being too remote and uncertain, only nominal damages can be recovered. See 37 Cyc. pp. 1760, 1761. “The courts have held strictly to the rule that the mere probability that a certain event would have happened, upon which a claim of damages is predicated, will not support such a claim nor furnish the foundation for an action for such damages. The damages which are recoverable for the alleged negligence of a telegraph company in not delivering a telegram, the receipt of which on time would have enabled the person to whom it should have been promptly delivered, to make an advantageous contract, must Joe such damages as would follow as a legal certainty from the negligent act of the company, and not merely those damages the accruing of which would depend upon the act of some third person which might or might not be done.” (Italics supplied.) McQuilkin v. Postal Telegraph Cable Co., 27 Cal.App. 698, 151 P. 21, 22; see too Johnson v. Western Union Telegraph Co., 79 Miss. 58, 29 So. 787, 89 Am.St.Rep. 584.
Moreover, the contract which the plaintiff claims he lost by the nondelivery of the message was not one for the loss of which substantial damages could be recovered. His employment, had he obtained it, was subject to termination at any time at the will of his employer or himself. For the loss of a contract of this character substantial damages cannot be awarded; they are too uncertain and speculative. In Merrill v. Western Union Telegraph Co., 78 Me. 97, 2 A. 847, 848, there was a verbal contract that the plaintiff was to be employed at $2.21 per day. The message notifying the plaintiff of this employment was not delivered and he lost the opportunity to be employed. It was held that the telegraph company was not liable beyond nominal damages on the ground that “Under the terms of the contract in proof, he was liable to be dismissed from his employment as soon as he had entered upon it, and it cannot be known what damages he has suffered in the premises.” In Kenyon v. Western Union Telegraph Co., 100 Cal. 454, 35 P. 75, 76, an applicant for an appointment as deputy assessor lost the appointment because of the delay in a telegraph message. He was held entitled to recover only nominal damages. “A deputy is appointed to hold during the pleasure of the officer appointing him. * * * The allegation, therefore, that he would have received the appointment, is not an allegation that he would have been retained for any definite length of time; nor could such allegation be made. * * * As damages ,or compensation must be measured by the loss sustained, where that loss cannot be ascertained damages cannot be recovered.” In McQuilkin v. Postal Telegraph Cable Co., supra, it was said that “the courts have held strictly to the rule that the mere probability that a certain event would have happened, upon which a claim of damages is predicated, will not support such claim nor furnish the foundation for an action for such damages.”
See too Wilson v. Western Union Telegraph Co., 124 Ga. 131, 52 S.E. 153; Larsen v. Postal Telegraph Cable Co., 150 Iowa 748, 130 N.W. 813; Savage v. Western Union Telegraph Co., 120 Kan. 258, 242 P. 1015; Kenyon v. Western Union Telegraph Co., 100 Cal. 454, 35 P. 75.
The Massachusetts statute bringing telegraph companies under the jurisdiction of the Department of Public Utilities (G.L. Mass. (Ter.Ed.) c. 159, §§ 12, 18, 19) does not increase the defendant’s common-law liability in this respect.
In each case:
The judgment of the District Court is reversed and the case is remanded to that court, with instructions to enter judgment for nominal damages.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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. Frank LOMPREZ, Jr., and Joseph William Smith, Defendants-Appellants.
Nos. 71-1106, 71-1110.
United States Court of Appeals, Seventh Circuit.
Argued June 15, 1972.
Decided Dec. 14, 1972.
Rehearing and Rehearing En Banc Denied Jan. 6, 1973.
Certiorari Denied May 7, 1973.
See 93 S.Ct. 2144.
Michael J. Costello, Springfield, Ill., for defendants-appellants.
Donald B. Mackay, U. S. Atty., Gregory M. Wilson and Max E. Goodwin, Asst. U. S. Attys., Springfield, Ill., for plaintiff-appellee.
Before FAIRCHILD, Circuit Judge, SPRECÍIER, Circuit Judge, and CAMPBELL, Senior District Judge.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
CAMPBELL, Senior District Judge.
Following a jury trial in the Southern District of Illinois, the defendants Frank Lomprez, Jr., and Joseph William Smith, were found guilty on a three count indictment charging them with bank robbery, in violation of 18 U.S.C. § 2113(a) (b) and (d). Judgments of conviction were entered on the verdicts and the defendants have appealed, raising some twelve contentions of error. We affirm.
The defendants object first to the introduction into evidence of a statement made by the defendant Smith to agents of the Federal Bureau of Investigation during their questioning of Smith at his home on the evening of the robbery. The robbery had taken place at the State Bank of Farmersville, Farmersville, Illinois at about 2:20 P.M. on May 27, 1970. At 9:00 P.M. that evening the police and agents of the Federal Bureau of Investigation arrived at the defendant Smith’s home after tracing a license number of a car observed at the scene of the crime. During the questioning, Smith told the agents that at the time of the robbery he was shopping at a nearby store with his wife and two children. Before any questioning had been commenced, the defendant Smith was advised by the agents of the full ambit of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). About one-half hour into the interview but after the statement had been made, the defendant told the agents that he thought he ought to call an attorney. The agents then gave defendant Smith an opportunity to use the telephone for this purpose, but he made no effort to contact an attorney. The questioning continued.
The government contends that the defendant Smith was not “in custody” within the meaning of Miranda and that since the questioning was conducted in a non-coercive atmosphere, the statements were voluntary and thus admissible into evidence. The admissibility of the statements, however, need not turn upon a determination of whether the defendant was “in custody”. Inasmuch as the full Miranda warnings were given the defendant and since the statements were made prior to the defendant’s expression of a desire to contact an attorney, we believe that the statements were voluntary and thus admissible into evidence.
The defendants next contend that since the statements did not amount to a confession or an admission, their introduction violated the defendant’s privilege against self-incrimination. The government’s theory, with which we agree, was that the statement constituted a “false exculpatory statement” and thus had independent probative value as evidence of a consciousness of guilt. See United States v. McConnery, 329 F.2d 467 470 (2d Cir. 1964). The defendants maintain that “false exculpatory statements” are admissible only where the defendant has testified and thus waived his privilege against self incrimination. No authority is cited for this contention and the McConnery case contravenes its validity.
The defendants also claim that the district court erred in refusing to grant a severance and in failing to give an instruction limiting the jury’s consideration of the false exculpatory statement of defendant Smith to defendant Smith alone. Relying on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the defendants argue that the false exculpatory statement of the defendant Smith prejudiced the defendant Lomprez. Unlike the situation in Bruton, however, the defendants here were not charged with a conspiracy. No instruction permitting the jury to consider the statements of a co-conspirator against another co-conspirator was given. The statement itself related only to the defendant Smith’s activities on the day in question and thus could not have prejudiced the defendant Lomprez.
Another error occurred, the defendants say, when the district court refused to order prior to trial the production of a statement made by the defendant’s Smith’s wife to the FBI agents on the evening of May 27, 1970. Since the defendant’s wife was not called as a government witness, neither Rule 16 of the Federal Rules of Criminal Procedure nor § 3500 of Title 18 of the United States Code require such production and, thus, the defendant’s argument is without merit.
The same is true with respect to the defendants’ contention that government exhibit 8 was improperly admitted into evidence. The exhibit consisted of a sales slip from the K-Mart Store where the defendant Smith, in his statement to the FBI agents, claimed he was at the time of the robbery. The sales slip was discovered during a search of the trunk of the defendant’s automobile. Since the defendant Smith consented in writing to the search, its fruits were properly admissible into evidence.
A further objection to the admission of government exhibit 8 is raised on the ground that its admission violated the best evidence rule. The purpose of this exhibit was to demonstrate that the defendant was not in the K-Mart store at the time of the bank robbery and that, therefore, his statement to that effect to the F.B.I. agents thus constituted a “false exculpatory statement”. A clerk from the store, whose testimony provided the foundation for the admission of the sales slip, stated that she referred to a book in her office for purpose of determining which cash register had issued the sales slip. The defendant maintained that this book should have been offered by the government and that it constituted the best evidence. However, the book was not a record of transactions but was merely a reference manual which would have added nothing to the testimony of the witness. Since the so called “book” was not essentially a written transaction, it does not fall within the requirements of the best evidence rule. See Meyers v. United States, 84 U.S.App.D.C. 101, 171 F.2d 800 (1948), cert. denied, 336 U.S. 912, 69 S.Ct. 602, 93 L.Ed. 1076 (1949).
Next the defendants maintain that the government suppressed evidence favorable to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The supposedly favorable evidence consisted of the statements of two witnesses who could not positively identify the defendants. However, all of the witnesses testified at the trial. Two of these three witnesses made positive in-court identifications of the defendants while one witness was not positive. Too, the government furnished the defense with the name and address of an alibi witness who had been interviewed by the government and whose testimony was favorable to the defense. In view of these facts the defendants’ contention that the government suppressed evidence favorable to them is without basis.
It is also asserted by the defendants that prejudicial error occurred in the closing argument of the government. The prosecutor stated to the jury that three witnesses had made positive identifications of the defendants whereas the evidence disclosed that only two witnesses made such identifications. Although the prosecutor was mistaken about the evidence, we don’t believe that his comment rises to the level of prejudicial error. The jury heard the evidence and was thus in a position to properly assess the comment of the prosecutor. The other prosecutorial remark complained of by the defendants consisted of a statement by him that one of the defense counsel had been present at a lineup where he had an opportunity to question the witnesses and that' perhaps this lawyer should have testified. Although this comment by the prosecutor was improper, it was immediately objected to and the jury was instructed to disregard it. We find no error in this regard.
Nor are we persuaded by the defendant’s contention that the trial court erred in giving an instruction on dangerous weapons. The evidence disclosed that the two men who participated in the robbery were both armed and that their guns were drawn. The instruction was thus clearly based on the evidence and was not improper.
Yet another contention of the defendants is that there was a fatal variance between the amount of money stated in the indictment and the amount which the proof at trial demonstrated to have been stolen from the bank. The indictment charged that $5765.00 had been taken from the bank. During the trial figures of $5765.00, $5735.00 and $5300.00 were mentioned. The variance, if any, was thus no greater than $465.00. We do not consider such a variance to be fatal.
Lastly, the defendants maintain that the evidence was not sufficient to support the guilty verdict. We disagree inasmuch as two occurrence witnesses positively identified each defendant as a participant in the bank robbery. The credibility of these witnesses and the weight to be given their testimony was clearly for the jury to determine.
For the reasons stated, the judgments of conviction are affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Tim BARTOLOMEO, d/b/a Quality Brands, Inc., Plaintiff-Appellant, v. S.B. THOMAS, INC.; CPC International, Inc., Defendants-Appellees.
No. 89-2339.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1989.
Decided Nov. 17, 1989.
Denise Smith Cline (Thomas W. Steed, Jr., Barry L. Creech, Moore & Van Allen, Raleigh, N.C., on brief), for plaintiff-appellant.
Robert Ambrose Wicker (Linda S. Bellows, Smith, Helms, Mulliss & Moore, Greensboro, N.C., on brief), for defendants-appellees.
Before PHILLIPS and WILKINSON, Circuit Judges, and BRITT, Chief Judge, United States District Court for the Eastern District of North Carolina (sitting by designation).
PHILLIPS, Circuit Judge:
Tim Bartolomeo appeals, pursuant to a Rule 54(b) certification, from the district court’s grant of partial summary judgment disposing of three of his four claims against S.B. Thomas, Inc. (Thomas) and CPC International, Inc. (CPC). The court granted summary judgment for defendants on Bartolomeo’s claims of wrongful termination of an oral distributorship agreement, unfair and deceptive trade practices in violation of N.C.Gen.Stat. § 75-1.1, and tortious interference with contract, but denied summary judgment on his claim of pre-termination breaches of contract.
We affirm.
I
In October 1983, Bartolomeo entered into an oral distributorship agreement with Thomas, a subsidiary of CPC, to serve as a “multiple distributor” of Thomas’ English muffins throughout North and South Carolina. Under this “two-tiered” distribution system, Thomas would contract with multiple distributors like Bartolomeo, who in turn would independently hire subdistribu-tors to supply Thomas’ English muffins within a certain region.
Bartolomeo began his multiple distributorship for Thomas on January 1, 1984. Operating under the trade name Quality Brands, he made substantial investments in equipment, office space, and promotional efforts in the course of starting up and sustaining his sole-proprietor distributorship. Over the next couple of years, Barto-lomeo expanded his business by hiring his wife as an office assistant and by distributing a noncompeting product (Tastykakes), both with the blessing of Thomas.
Through it all, Bartolomeo never signed a formal written contract with Thomas. During the life of Bartolomeo’s distributorship, Thomas did prepare for its distributors a form contract which provided for thirty days notice of termination and exclusivity in the distributorship. According to Thomas, existing multiple distributors, including Bartolomeo, were provided with a blank copy of that contract, but were not required to execute it because it was understood that they were already operating under the terms made express by the contract. Bartolomeo, on the other hand, claims not to recall ever having seen a copy of the form contract.
In 1986, Thomas’ parent company, CPC, purchased Arnold Foods, and Thomas and Arnold Foods were grouped under Best Foods Baking Group, a division of CPC. Before that restructuring, Arnold Foods had been using a different distribution system from Thomas’ and Bartolomeo thus became concerned about whether the corporate restructuring would affect his distributorship. He claims to have been given repeated assurances from regional representatives of Best Foods that his business would continue. In claimed reliance on these assurances, Bartolomeo prepared a market analysis report containing allegedly proprietary information, which he claims Thomas later used in reorganizing the region’s distribution system.
In June 1987 Best Foods decided to abandon the two-tiered multiple distributorship system in favor of a single-tier system. Under the new system, Best Foods personnel would manage independent distributors, each of whom would be responsible for a single route. This reorganization required consolidating some routes in which the old Thomas and Arnold Foods distribution systems overlapped and assigning the new routes to some existing individual distributors and terminating others.
Bartolomeo was informed of this decision to reorganize the distribution system on July 21, 1987 and was told that he would be terminated “some time in 1988.” On October 29, he was given formal written notice that he would be terminated effective January 2, 1988 and on that same day Best Foods offered him $65,000 for a release from liability and for permission to hire his employees. Bartolomeo asked for and was given an extension of the twenty-four hour deadline for accepting the offer, but ultimately declined it.
Bartolomeo then brought this action, alleging the four claims earlier identified, all arising out of what he claimed to be the wrongful termination of his distributorship following a series of antecedent acts on Thomas’ part which constituted tortious interference with contract, violations of the state unfair trade practices law, and pre-termination breaches of contract.
The district court granted partial summary judgment, concluding that the oral distributorship agreement was one terminable at will under North Carolina law so that its termination was therefore not actionable, and that as a matter of law the defendants’ conduct did not constitute unfair trade practices under the state statute nor wrongful interference with contract under state tort law. This appeal followed. On it, Bartolomeo only challenges the court’s dismissal of his wrongful termination and unfair trade practices claims; the wrongful interference with contract claim is therefore not before us, and its dismissal stands.
II
In reviewing the district court’s grant of summary judgment, we apply the same standard applied by the trial court and consider whether, viewing the facts in the light most favorable to Bartolomeo, there is any genuine issue of material fact precluding the entry of judgment as a matter of law. Fed.R.Civ.P. 56(c). As all agree, North Carolina substantive law controls, and that law “identifpes] which facts are material.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
We take the wrongful termination and unfair trade practices claims in that order.
A.
The propriety of the court’s dismissal of the wrongful termination claim turns on the proper interpretation of General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459, 117 S.E.2d 479 (1960). In General Tire, the North Carolina Supreme Court held that while a distributorship agreement of indefinite duration is generally terminable at will, a distributor who has made substantial investments in his business is entitled to operate the distributorship for a “reasonable time.” Id. 117 S.E.2d at 489. And in its discussion, the Court noted that what is a reasonable period of time depends on a variety of circumstances: amount of expenditures, length of time the distributorship has already run, potential for future profit, and past profitability; but that the ultimate test is not “whether distributor has recouped his expenditures, but whether he has had a fair opportunity.” Id.
The district court read General Tire as holding by clear implication that a distributor who has recouped his expenses has, as a matter of law, been given a “reasonable time” to operate the distributorship. Because Bartolomeo indisputably had done so, he could not bring himself within General Tire’s “reasonable time” exception, and his distributorship was therefore terminable at will under the general rule. Bartolomeo challenges that reading of General Tire, contending, as we understand his argument, that the rule of General Tire mandates a factual inquiry under any and all circumstances into whether a particular distributorship had been given a “reasonable time” to operate before its termination. In support, he points to portions of the General Tire court’s opinion which looked to factors such as the potential for future profit and the length of the distributorship in absolute terms.
We agree with the district court’s reading. The General Tire court’s references to the possibility of future profits and sheer longevity of the distributorship in that case have to be read in context. When this is done, we are satisfied that the decision does not hold, as Bartolomeo seems to argue, that even after an at-will distributor has recouped his expenses, he is entitled to continue it thereafter for a “reasonable time” as that may be determined by finders of fact on a case-by-case basis.
Unlike Bartolomeo, the distributor in General Tire had not recouped his investment and indeed had lost a considerable sum on expenditures when his distributorship was terminated. The trial court had refused to permit the jury to award any relief for the loss on the expenditures, and while the North Carolina Supreme Court found no error in this, it ordered a new trial on other grounds and discussed how the termination issue should be addressed at the new trial. Because there was evidence that the business was becoming increasingly unprofitable, the distributor had no right to recover “the expenditures ... as such,” id. 117 S.E.2d at 489, but the amount of those expenditures was relevant evidence on the question of whether the distributor had had a reasonable time to operate the distributorship. There was also evidence that the parties had contemplated continuing the distributorship for at least two years beyond the date when it was actually terminated. Thus, the jury was to decide whether the premature termination was reasonable under the circumstances and, if not, what the reasonably ascertainable net profits would have been during a hypothetical reasonable period of continued operation.
We are persuaded that the North Carolina courts would hold that General Tire’s narrow exception to the terminable-at-will rule has no application where the distributor has fully recouped his investment, and even made some profits, on his distributorship. Such a distributor manifestly has had a “fair opportunity” to recoup start-up outlays and bring the business into profitable operation. This, we believe, is the essence of the General Tire rule. The rule’s concern is to protect against the general rule of termination-at-will only those who have not even had a chance to realize a return on their initial outlays. For such distributors, a multifac-tored analysis of the “reasonableness” of particular terminations is required to guard against intolerably harsh consequences of early terminations under the general rule. To allow juries to decide, however, the “reasonable time” for continued operation of an already profitable distributorship would virtually nullify the general rule of at-will termination and we do not believe that General Tire intended any such consequence. That sort of added protection against at-will termination, we believe, is still left under North Carolina law to the bargaining process.
B.
Bartolomeo next contends that there were genuine issues of material fact regarding possible violations of North Carolina’s Unfair and Deceptive Trade Practices Act, N.C.Gen.Stat. § 75-1.1(a) (1988) (the Act). The Act prohibits “unfair methods of competition ... and unfair or deceptive acts or practices in or affecting commerce.” Id. Although the ultimate issue of whether a particular act or practice violates the Act is one of law for the court, disputes over the facts on which such a legal decision is based are for the trier of fact. Hageman v. Twin-City Chrysler-Plymouth, Inc., 681 F.Supp. 303, 306 (M.D.N.C.1988). Bartolomeo claims that there are genuine issues of material fact here as to whether Thomas misled him into thinking that his distributorship would continue and had committed a series of other acts breaching the agreement which, because of their nature, would constitute violations of the Act.
We agree with the district court that, considering the proffered evidence in the light most favorable to Bartolomeo, the defendant’s conduct would not violate the Act.
Bartolomeo first relies on his available evidence that the defendants knew as early as May 1987 that multiple distributorships such as Bartolomeo’s would be discontinued and that they nonetheless gave him repeated assurances that he did not have “a thing to worry about.” There is indeed a dispute as to when the decision to change the distribution system was actually made, and whether the regional representatives who spoke to Bartolomeo were merely expressing their honest opinions that he would be continued. But it is undisputed that by July 21, Bartolomeo had actual notice that he would eventually be terminated, and that on October 29 he received written notice that the termination would take effect on January 2, 1988.
Taking the relevant evidence in the light most favorable to Bartolomeo, the core of his claim here is that for a period of time in the early summer of 1987, he was “deceived” about the status of his distributorship. And he claims that this caused him to prepare a market analysis report for defendants which detailed some proprietary information about his business during this period.
One need not show that he was actually deceived to prevail under the Act, as long as “the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception.” Chastain v. Wall, 78 N.C.App. 350, 337 S.E.2d 150, 154 (1985) (quoting Overstreet v. Brookland, Inc., 52 N.C.App. 444, 279 S.E.2d 1, 7 (1981)). The defendant’s intent or good faith is irrelevant. Marshall v. Miller, 276 S.E.2d 397, 403 (N.C.1981). Bartolomeo argues that under these principles, the trial court erred in ruling as a matter of law that whatever deception he may have experienced did not rise to the level of a violation of the Act.
The district court relied primarily on Tar Heel Industries v. E.L duPont de Nemours, 91 N.C.App. 51, 370 S.E.2d 449 (1988), in reaching its legal conclusion that no statutory violation had occurred even if the facts be as advanced by Bartolomeo. The plaintiff in Tar Heel, a carrier service, complained that defendant duPont had violated the Act by not informing it that du-Pont was looking for alternative carriers while the parties were still under contract, even though duPont eventually gave a timely notice of termination. The appeals court upheld a grant of summary judgment for duPont, noting that the mere fact of termination under a terminable-at-will agreement does not amount to a violation of the Act, Dull v. Mutual of Omaha, 85 N.C.App. 310, 354 S.E.2d 752 (1987), and that the plaintiff had received all the notice to which it was entitled under the contract.
Bartolomeo tries to distinguish Tar Heel by arguing first that there was no express notice period in his oral contract, thereby presenting a genuine issue of the reasonableness of the notice he received, and second that he was not simply uninformed about the plans to change the distribution system but was “knowingly misled” by representatives of Thomas. Neither of these arguments has merit. Written contracts that Thomas had with similarly situated distributors provided for thirty days notice of termination. Although Bartolomeo had no express agreement on notice, it is undisputed that he had over five months actual notice of his termination and written notice over sixty days in advance of the effective date. On his second point, even if the statements did have a deceptive quality within the meaning of the Act, which we doubt, Bartolomeo has not shown that he “suffered actual injury as a proximate result ” of these statements, Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271, 273-74 (1980) (emphasis supplied). Because he had all the notice for which he could conceivably have asked, and has not shown how the supposedly proprietary information that he gave to Thomas’ representatives was misappropriated to his actual injury, the district court properly concluded that this conduct did not violate the Act.
Bartolomeo next maintains that other pre-termination breaches of the distributorship agreement, which survived the summary judgment motion, were accompanied by aggravating circumstances which constituted violations of the Act.
A simple breach of contract, even if intentional, does not amount to a violation of the Act; a plaintiff must show substantial aggravating circumstances attending the breach to recover under the Act, which allows for treble damages. See United Roasters, Inc. v. Colgate-Palmolive, 649 F.2d 985 (4th Cir.1981). In United Roasters, the defendant had decided to terminate an agreement under which it would manufacture and promote a product developed by the plaintiff. After the decision was made to terminate, but before notice was given, the defendant ceased performing under the contract. We upheld the plaintiff’s breach of contract claim, though not on the bad faith termination theory relied upon by the district court, but nonetheless agreed with the court that no violation of the Act had occurred. Despite the defendant’s complete and abrupt abandonment of the contractual relationship, we saw no suggestion of “substantial aggravating circumstances” that would justify the extraordinary treble damages recovery, and we opined that to find such factors one would probably need to demonstrate deception either in the formation of the contract or in the circumstances of its breach. Id. at 992.
Bartolomeo cites seven instances of alleged misconduct on Thomas’ part that occurred after the decision to terminate and argues that these should be viewed as substantial aggravating circumstances: (1) delayed notice of a test marketing; (2) limited time to accept a settlement offer; (3) failure to deliver products on the day he refused the offer; (4) tampering with some documents pertaining to changes in distribution methods; (5) delayed reimbursements; (6) failure to inform him of some incentive bonuses; and (7) removal after his termination of some products from the shelves to which he had delivered them.
Bartolomeo will of course have the opportunity to pursue these claims as breaches of contract. We agree, however, with the district court’s legal conclusion that these acts, even if proved, would not rise to the level of a violation of the Act under the standards of United Roasters. The district court properly viewed these alleged occurrences as, at most, simple breaches of contract, not “substantial aggravating circumstances” that would justify the recovery of treble damages.
III
For the foregoing reasons, the district court’s grant of partial summary judgment is affirmed.
AFFIRMED.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_casetyp1_7-2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
GREGSON & ASSOCIATES ARCHITECTS, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.
No. 81-1605.
United States Court of Appeals, Third Circuit.
Argued Dec. 8, 1981.
Resubmitted March 10,1982 Before Original Panel Pursuant to Rule 12(6).
Decided April 15, 1982.
Rehearing Denied May 6, 1982.
Robert W. Hassett (argued), Gort, Has-sett & Shannon, Atlanta, Ga., Frank Padilla, Frederiksted, St. Croix, V. I., for appellant.
Richard R. Knoepfel, Asst. Atty. Gen., Dept, of Law, Charlotte Amalie, St. Thomas, V. I. (argued), William C. Murray, Jr., Christiansted, St. Croix, V. I., for appellee.
Before HUNTER, VAN DUSEN and SLOVITER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Oral argument in the instant case was heard by this panel on December 8, 1981. On January 5, 1982, we filed an opinion in which we dismissed the appeal for lack of appellate jurisdiction. We subsequently granted rehearing before the panel, and we now file this superseding opinion, in which we conclude that appellate jurisdiction exists. By order of this court dated February 21, 1982, the panel’s opinion filed and judgment entered on January 5, 1982 has been vacated. For the reasons stated below, we will affirm the judgment of the district court.
FACTS
Api>ellant Gregson & Associates Architects brought suit in the federal district court for the District of the Virgin Islands seeking relief on contract and quantum meruit theories for architectural services it claimed to have provided to the Government of the Virgin Islands. The district court found that no valid contract existed, and that quantum meruit recovery was unavailable because no benefit was shown to have accrued to the government. Gregson now appeals the judgment entered in favor of the defendant Government of the Virgin Islands.
JURISDICTION
The threshold issue is that of timeliness of this appeal. Fed.R.App.P. 4(a)(1) provides in part:
In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal . .. shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from ....
Judgment was entered by the district court in this case on February 26, 1981. The notice of appeal was not filed until April 6, 1981, more than thirty days after this judgment. Appellant contends, however, that the district court’s order of February 26, 1981 did not constitute a “judgment” within the meaning of Rule 4 since the court’s order did not meet the requirements of Fed.R.Civ.P. 58. Rule 58 provides in part that “[ejvery judgment shall be set forth on a separate document.”
In the instant ease, the judgment of the district court was set forth within a four-page document including a memorandum opinion by the court. The district court’s order of February 26 carried the heading “MEMORANDUM OPINION AND JUDGMENT.” On the last of the four pages of the document there appeared a separate heading, “JUDGMENT,” under which the judgment of the court was stated. The document was entered on the court’s docket. Furthermore, appellant admitted at oral argument that it had understood the February 26 order as containing the judgment of the district court. Indeed, the very notice of appeal at issue here, filed by appellant, provides:
NOTICE IS HEREBY GIVEN that GREGSON & ASSOCIATES ARCHITECTS, Plaintiff/Intervenor-Appellant, hereby appeals to the Third Circuit Court of Appeals from the Judgment entered in this court on the 26th day of February, 1981.
In United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562,36 L.Ed.2d 202 (1973), the Supreme Court discussed the purpose of the separate document requirement:
The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment. [Citation omitted.] Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty.
Id. at 220, 93 S.Ct. at 1564. The provision, the Court held, was a “ ‘mechanical change’ that must be mechanically applied to avoid new uncertainties as to the date on which a judgment is entered.” Id. at 222, 93 S.Ct. at 1565.
Five years later, in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), the Court reiterated the purpose behind the rule:
The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal ... begins to run.... The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely.
Id. at 384-85, 98 S.Ct. at 1119-20. While ostensibly adhering to the Indrelunas requirement of mechanical application of the separate document rule, the Bankers Trust court examined the facts of the case before it and ruled that appellate jurisdiction existed even though no separate document had been filed. The Court noted that “the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. A judgment ... was recorded in the clerk’s docket.” 435 U.S. at 387, 98 S.Ct. at 1121. Furthermore, the Court stated, the appellee obviously did not object to the taking of an appeal in the absence of a separate judgment. Under the circumstances, the Court deemed the parties to have waived the separate document requirement. Id. at 387-88, 98 S.Ct. at 1121-22.
Similarly, in International Brotherhood of Teamsters Local 249 v. Western Pennsylvania Motor Carriers Association, 660 F.2d 76 (3d Cir. 1981), we refused to require literal compliance with the separate document requirement of Rule 58. Rather, “[o]ur review of the record satisfie[d] us that the district court intended its ... order to serve as its judgment in the instant case.” 660 F.2d at 80. Thus, in Teamsters Local 249, as in Bankers Trust, the purposes of the separate document rule would not be served by its application.
The separate document requirement was clearly intended to rescue an appellant who fails to recognize the final judgment of the district court as a final judgment. But appellant does not claim that he was uncertain about whether the February 26 order was the district court’s final judgment. To the contrary, appellant asserts that he “incorrectly” believed that the order was the final judgment. Appellant was not incorrect. The document was in fact the final judgment; it was docketed and treated as such by the court and by both parties. Under these particular facts, it would seem that no purpose of the separate document rule would be served by allowing appellant more than the thirty days he thought he had.
Nevertheless, we are constrained by the Supreme Court’s decision in Indrelunas to apply the separate document requirement in this case. The court of appeals in Indrelunas had engaged in an analysis of the purpose of the requirement; it then examined the facts surrounding the Government’s filing of the notice of appeal in that case:
This Notice, filed some eight months pri- or to the February motion for entry of judgment, indicates to this court that the government believed the case to be ripe for appeal following the District Court’s directive that entry of judgment be made and there be judgment on the verdicts as so entered. In this case there was nothing left to be done by the court and everyone involved so understood the judgment to be final. It would, therefore, be somewhat absurd to hold that although all the parties involved understood the case to be at an end, the time limits for appeal would not begin to run until some undetermined point in the future when a formal document was included in the file. In our opinion, the crucial element is that the parties understood the original decision to be final. This understanding, together with the entry of judgment on the docket, considered in context with the foregoing interpretation of the present Rule 58, Fed.R.Civ.P., lead us to the conclusion that the government’s appeal in this case is untimely. A holding to the contrary would, in our opinion, allow undue advantage to be taken of a revision in Rule 58 which was intended to clarify and speed-up the entry of judgment, not provide an avenue for prolonging litigation. For example, if we were to find that such a formal document is an absolute necessity in every case, there would undoubtedly be cases that could remain appealable ad infinitum, notwithstanding the fact that all parties involved believed the case to be at an end. We, therefore, dismiss the defendant’s appeal.
Foiles v. United States, 465 F.2d 163, 168-69 (7th Cir. 1972), rev'd sub nom. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (footnote omitted). The reasoning of the Seventh Circuit applies with equal force to the facts in the instant case; however, it was exactly this kind of “case-by-case tailoring” of the separate document requirement which was expressly rejected by the Supreme Court when it reversed the court of appeals in Indrelunas.
Thus, because the final judgment of the district court was not entered on a separate document, the thirty-day period prescribed by Fed.R.App.P. 4(a)(1) never began to run. Appellant’s notice of appeal cannot be untimely, and we conclude that appellate jurisdiction exists in this case.
APPELLANT’S CLAIMS
The district court, sitting without a jury, found that no valid contract existed between appellant and the Government of the Virgin Islands, and, because no benefit was shown to have accrued to the government, that quantum meruit recovery was unavailable. Our review of the record supports the district court’s conclusions.
Therefore, the judgment of the district court will be affirmed.
. Our review of the relevant case law convinces us that this order does not satisfy the Rule 58 requirement that “[e]very judgment shall be set forth on a separate document.” See, e.g., Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Ltd, 650 F.2d 633, 635-36 (5th Cir. 1981); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689 (4th Cir. 1978).
. The docket entry reads: “Memorandum opinion and judgment entered by Clarence C. Newcomer, sitting by designation granting judgment on behalf of the defendant Government of the Virgin Islands, filed.” The docket entry is dated February 26, 1981.
. Appellant’s Petition for Rehearing at 8.
. 411 U.S. at 221, 93 S.Ct. at 1564.
. As discussed supra, the lack of a separate document does not preclude us from recognizing the existence of an appealable final judgment. See, e.g., Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978); International Brotherhood of Teamsters Local 249 v. Western Pennsylvania Motor Carriers Ass’n, 660 F.2d 76 (3d Cir. 1981).
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_casetyp1_1-3-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Charles Thomas BUCHANNON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.
No. 72-3590
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 9, 1973.
Charles Buehannon, pro se.
Robert L. Shevin, Atty. Gen., Nelson Bailey, Asst. Atty. Gen., Tallahassee, Fla., Fredrie J. Scott, Asst. Atty. Gen., W. Palm Beach, Fla., for respondent-ap-pellee.
Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.
Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
The district court denied the petition of Buehannon, a Florida state prisoner, for a writ of habeas corpus. We affirm.
The appellant was convicted upon trial by jury of robbery and assault with intent to commit first degree murder and was sentenced to concurrent terms of 35 and 20 years, respectively. The conviction was affirmed on direct appeal. Buchannon v. Wainwright, Fla.App. 1970, 239 So.2d 608.
In his habeas petition filed below, appellant alleged several grounds for relief. First he alleged that he was initially arrested pursuant to a justice of the peace warrant, but after a preliminary hearing it was found there was no probable cause for the arrest and he was released. Subsequently the state attorney filed an information against appellant, he was again arrested, and proceeded to trial without a preliminary hearing. Appellant contends he was illegally rearrested and was illegally denied a second preliminary hearing. The contentions are without merit. The state was obviously within its rights to file an information after appellant was initially released. There is nothing in the state law which requires a preliminary hearing after an information has been filed. Also, appellant has no constitutional right to a preliminary hearing. Jackson v. Smith, 5th Cir. 1970, 435 F.2d 1284; Scarbrough v. Dutton, 5th Cir. 1968, 393 F.2d 6.
Appellant contended that his convictions are invalid because he was prosecuted on a bill of information and not on an indictment. The states are free to proceed on an information since the indictment clause of the constitution is not applicable to the states. Gaines v. Washington, 1928, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Hurtado v. California, 1884, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Henderson v. Cronvich, 5th Cir. 1968, 402 F.2d 763. He also contended that the trial court erred in admitting conflicting testimony and admitting evidence regarding a pistol owned by appellant. A state court’s rulings on admissibility of evidence do not present grounds for federal review. Lisenba v. California, 1941, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Pleas v. Wainwright, 5th Cir. 1971, 441 F.2d 56; Williams v. Wainwright, 5th Cir. 1970, 427 F.2d 921.
Appellant contended that his sentence is excessive because his co-defendants received lower sentences. This likewise presents no grounds for federal habeas corpus relief. United States v. Harbolt, 5th Cir. 1972, 455 F.2d 970; Rodriquez v. United States, 5th Cir. 1968, 394 F.2d 825. He also alleged that a determination of the voluntariness of his confession was not made by the trial court. The district court found that no confession or statement was introduced as evidence against him. A review of the trial transcript reveals no clear error in that finding. Finally, appellant contended that housewives and 18-20 year olds were excluded from his jury. Appellant stated only a conclusion, offering no factual allegations to support that conclusion.
There being no merit to appellant’s contentions, the judgment below is affirmed.
Affirmed.
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer:
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sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
CHANDRIS, INC., et al. v. LATSIS
No. 94-325.
Argued February 21, 1995 —
Decided June 14, 1995
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Thomas and Breyer, JJ., joined, post, p. 377.
David W. McCreadie argued the cause for petitioners. With him on the briefs were David F Pope and Christ Stratakis.
Lewis Rosenberg argued the cause for respondent. With him on the brief was Barry I. Levy.
Briefs of amici curiae urging reversal were filed for the City of New York by Paul A Crotty and Leonard J. Koerner; and for TECO Transport & Trade Corp. et al. by Robert B. Acomb, Jr., and Robert T. Lemon II.
Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Stevan C. Dittman and Larry S. Stewart; and for the United Brotherhood of Carpenters and Joiners of America by John R. Hillsman.
Justice O’Connor
delivered the opinion of the Court.
This case asks us to clarify what “employment-related connection to a vessel in navigation,” McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 355 (1991), is necessary for a maritime worker to qualify as a seaman under the Jones Act, 46 U. S. C. App. § 688(a). In Wilander, we addressed the type of activities that a seaman must perform and held that, under the Jones Act, a seaman’s job need not be limited to transportation-related functions that directly aid in the vessel’s navigation. We now determine what relationship a worker must have to the vessel, regardless of the specific tasks the worker undertakes, in order to obtain seaman status.
I
In May 1989, respondent Antonios Latsis was employed by petitioner Chandris, Inc., as a salaried superintendent engineer. Latsis was responsible for maintaining and updating the electronic and communications equipment on Chandris’ fleet of vessels, which consisted of six passenger cruise ships. Each ship in the Chandris fleet carried between 12 and 14 engineers who were assigned permanently to that vessel. Latsis, on the other hand, was one of two supervising engineers based at Chandris’ Miami office; his duties ran to the entire fleet and included not only overseeing the vessels’ engineering departments, which required him to take a number of voyages, but also planning and directing ship maintenance from the shore. Latsis claimed at trial that he spent 72 percent of his time at sea, App. 58; his immediate supervisor testified that the appropriate figure was closer to 10 percent, id., at 180.
On May 14, 1989, Latsis sailed for Bermuda aboard the S. S. Galileo to plan for an upcoming renovation of the ship, which was one of the older vessels in the Chandris fleet. Latsis developed a problem with his right eye on the day of departure, and he saw the ship’s doctor as the Galileo left port. The doctor diagnosed a suspected detached retina but failed to follow standard medical procedure, which would have been to direct Latsis to see an ophthalmologist on an emergency basis. Instead, the ship’s doctor recommended that Latsis relax until he could see an eye specialist when the Galileo arrived in Bermuda two days later. No attempt was made to transport Latsis ashore for prompt medical care by means of a pilot vessel or helicopter during the 11 hours it took the ship to reach the open sea from Baltimore, and Latsis received no further medical care until after the ship arrived in Bermuda. In Bermuda, a doctor diagnosed a detached retina and recommended immediate hospitalization and surgery. Although the operation was a partial success, Latsis lost 75 percent of his vision in his right eye.
Following his recuperation, which lasted approximately six weeks, Latsis resumed his duties with Chandris. On September 30,1989, he sailed with the Galileo to Bremerhaven, Germany, where the vessel was placed in drydock for a 6-month refurbishment. After the conversion, the company renamed the vessel the S. S. Meridian. Latsis, who had been with the ship the entire time it was in drydock in Bremerhaven, sailed back to the United States on board the Meridian and continued to work for Chandris until November 1990, when his employment was terminated for reasons that are not clear from the record.
In October 1991, Latsis filed suit in the United States District Court for the Southern District of New York seeking compensatory damages under the Jones Act, 46 U. S. C. App. § 688, for the negligence of the ship’s doctor that resulted in the significant loss of sight in Latsis’ right eye. The Jones Act provides, in pertinent part, that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury....” The District Court instructed the jury that it could conclude that Latsis was a seaman within the meaning of the statute if it found as follows:
“[T]he plaintiff was either permanently assigned to the vessel or performed a substantial part of his work on the vessel. In determining whether Mr. Latsis performed a substantial part of his work on the vessel, you may not consider the period of time the Galileo was in drydock in Germany, because during that time period she was out of navigation. You may, however, consider the time spent sailing to and from Germany for the conversion. Also, on this first element of being a seaman, seamen do not include land-based workers.” App. 210.
The parties stipulated to the District Court’s second requirement for Jones Act coverage — that Latsis’ duties contributed to the accomplishment of the missions of the Chandris vessels. Id., at 211. Latsis did not object to the seaman status jury instructions in their entirety, but only contested that portion of the charge which explicitly took from the jury’s consideration the period of time that the Galileo was in dry-dock. The jury returned a verdict in favor of Chandris solely on the issue of Latsis’ status as a seaman under the Jones Act. Id., at 213.
Respondent appealed to the Court of Appeals for the Second Circuit, which vacated the judgment and remanded the case for a new trial. 20 F. 3d 45 (1994). The court emphasized that its longstanding test for seaman status under the Jones Act required “‘a more or less permanent connection with the ship,’” Salgado v. M. J. Rudolph Corp., 514 F. 2d 750, 755 (CA2 1975), a connection that need not be limited to time spent on the vessel but could also be established by the nature of the work performed. The court thought that the alternate formulation employed by the District Court (permanent assignment to the vessel or performance of a substantial part of his work on the vessel), which was derived from Offshore Co. v. Robison, 266 F. 2d 769, 779 (CA5 1959), improperly framed the issue for the jury primarily, if not solely, in terms of Latsis’ temporal relationship to the vessel. With that understanding of what the language of the Robi-son test implied, the court concluded that the District Court’s seaman status jury instructions constituted plain error under established Circuit precedent. The court then took this case as an opportunity to clarify its seaman status requirements, directing the District Court that the jury should be instructed on remand as follows:
“[T]he test of seaman status under the Jones Act is an employment-related connection to a vessel in navigation. The test will be met where a jury finds that (1) the plaintiff contributed to the function of, or helped accomplish the mission of, a vessel; (2) the plaintiff’s contribution was limited to a particular vessel or identifiable group of vessels; (3) the plaintiff’s contribution was substantial in terms of its (a) duration or (b) nature; and (4) the course of the plaintiff’s employment regularly exposed the plaintiff to the hazards of the sea.” 20 F. 3d, at 57.
Elsewhere on the same page, however, the court phrased the third prong as requiring a substantial connection in terms of both duration and nature. Finally, the Court of Appeals held that the District Court erred in instructing the jury that the time Latsis spent with the ship while it was in dry-dock could not count in the substantial connection equation. Id., at 55-56. Judge Kearse dissented, arguing that the dry-dock instruction was not erroneous and that the remainder of the charge did not constitute plain error. Id., at 58.
We granted certiorari, 513 U. S. 945 (1994), to resolve the continuing conflict among the Courts of Appeals regarding the appropriate requirements for seaman status under the Jones Act.
H-1 HH
The Jones Act provides a cause of action in negligence for “any seaman” injured “in the course of his employment.” 46 U. S. C. App. § 688(a). Under general maritime law prevailing prior to the statute’s enactment, seamen were entitled to “maintenance and cure” from their employer for injuries incurred “in the service of the ship” and to recover damages from the vessel’s owner for “injuries received by seamen in consequence of the unseaworthiness of the ship,” but they were “not allowed to recover an indemnity for the negligence of the master, or any member of the crew.” The Osceola, 189 U. S. 158, 175 (1903); see also Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 370-371 (1932). Congress enacted the Jones Act in 1920 to remove the bar to suit for negligence articulated in The Osceola, thereby completing the trilogy of heightened legal protections (unavailable to other maritime workers) that seamen receive because of their exposure to the “perils of the sea.” See G. Gilmore & C. Black, Law of Admiralty §6-21, pp. 328-329 (2d ed. 1975); Robertson, A New Approach to Determining Seaman Status, 64 Texas L. Rev. 79 (1985) (hereinafter Robertson). Justice Story identified this animating purpose behind the legal regime governing maritime injuries when he observed that seamen “are emphatically the wards of the admiralty” because they “are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour.” Harden v. Gordon, 11 F. Cas. 480, 485, 483 (No. 6,047) (CC Me. 1823). Similarly, we stated in Wilander that “[traditional seamen’s remedies... have been ‘universally recognized as... growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.’” 498 U. S., at 354 (quoting Seas Shipping Co. v. Sieracki, 328 U. S. 85, 104 (1946) (Stone, C. J., dissenting)).
The Jones Act, however, does not define the term “seaman” and therefore leaves to the courts the determination of exactly which maritime workers are entitled to admiralty’s special protection. Early on, we concluded that Congress intended the term to have its established meaning under the general maritime law at the time the Jones Act was enacted. See Warner v. Goltra, 293 U. S. 155, 159 (1934). In Warner, we stated that “a seaman is a mariner of any degree, one who lives his life upon the sea.” Id., at 157. Similarly, in Norton v. Warner Co., 321 U. S. 565, 572 (1944), we suggested that “ ‘every one is entitled to the privilege of a seaman who, like seamen, at all times contributes to the labors about the operation and welfare of the ship when she is. upon a voyage’” (quoting The Buena Ventura, 243 F. 797, 799 (SDNY 1916)).
Congress provided some content for the Jones Act requirement in 1927 when it enacted the Longshore and Harbor Workers’ Compensation Act (LHWCA), which provides scheduled compensation (and the exclusive remedy) for injury to a broad range of land-based maritime workers but which also explicitly excludes from its coverage “a master or member of a crew of any vessel.” 44 Stat. (part 2) 1424, as amended, 33 U. S. C. § 902(3)(G). As the Court has stated on several occasions, the Jones Act and the LHWCA are mutually exclusive compensation regimes: “ ‘master or member of a crew’ is a refinement of the term ‘seaman’ in the Jones Act; it excludes from LHWCA coverage those properly-covered under the Jones Act.” Wilander, 498 U. S., at 347. Indeed, “it is odd but true that the key requirement for Jones Act coverage now appears in another statute.” Ibid. Injured workers who fall under neither category may still recover under an applicable state workers’ compensation scheme or, in admiralty, under general maritime tort principles (which are admittedly less generous than the Jones Act’s protections). See Cheavens, Terminal Workers’ Injury and Death Claims, 64 Tulane L. Rev. 361, 364-365 (1989).
Despite the LHWCA language, drawing the distinction between those maritime workers who should qualify as seamen and those who should not has proved to be a difficult task and the source of much litigation — particularly because “the myriad circumstances in which men go upon the water confront courts not with discrete classes of maritime employees, but rather with a spectrum ranging from the blue-water seaman to the land-based longshoreman.” Brown v. ITT Rayonier, Inc., 497 F. 2d 234, 236 (CA5 1974). The federal courts have struggled over the years to articulate generally applicable criteria to distinguish among the many varieties of maritime workers, often developing detailed multipronged tests for seaman status. Since the 1950’s, this Court largely has left definition of the Jones Act’s scope to the lower courts. Unfortunately, as a result, “[t]he perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review.” Gilmore & Black, supra, §6-1, at 272. Or, as one court paraphrased Diderot in reference to this body of law: “ ‘We have made a labyrinth and got lost in it. We must find our way out.’” Johnson v. John F. Beasley Constr. Co., 742 F. 2d 1054, 1060 (CA7 1984), cert. denied, 469 U. S. 1211 (1985); see 9 Oeuvres Completes de Diderot, 203 (J. Assézat ed. 1875).
A
In Wilander, decided in 1991, the Court attempted for the first time in 33 years to clarify the definition of a “seaman” under the Jones Act. Jon Wilander was injured while assigned as a foreman supervising the sandblasting and painting of various fixtures and piping on oil drilling platforms in the Persian Gulf. His employer claimed that he could not qualify as a seaman because he did not aid in the navigation fimction of the vessels on which he served. Emphasizing that the question presented was narrow, we considered whether the term “seaman” is limited to only those maritime workers who aid in a vessel’s navigation.
After surveying the history of an “aid in navigation” requirement under both the Jones Act and general maritime law, we concluded that “all those with that ‘peculiar relationship to the vessel’ are covered under the Jones Act, regardless of the particular job they perform,” 498 U. S., at 354, and that “the better rule is to define ‘master or member of a crew’ under the LHWCA, and therefore ‘seaman’ under the Jones Act, solely in terms of the employee’s connection to a vessel in navigation,” ibid. Thus, we held that, although “[i]t is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel,... a seaman must be doing the ship’s work.” Id., at 355. We explained that “[t]he key to seaman status is employment-related connection to a vessel in navigation,” and that, although “[w]e are not called upon here to define this connection in all details,... we believe the requirement that an employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission’ captures well an important requirement of seaman status.” Ibid.
Beyond dispensing with the “aid to navigation” requirement, however, Wilander did not consider the requisite connection to a vessel in any detail and therefore failed to end the prevailing confusion regarding seaman status.
B
Respondent urges us to find our way out of the Jones Act “labyrinth” by focusing on the seemingly activity-based policy underlying the statute (the protection of those who are exposed to the perils of the sea), and to conclude that anyone working on board a vessel for the duration of a “voyage” in furtherance of the vessel’s mission has the necessary employment-related connection to qualify as a seaman. Brief for Respondent 12-17. Such an approach, however, would run counter to our prior decisions and our understanding of the remedial scheme Congress has established for injured maritime workers. A brief survey of the Jones Act’s tortured history makes clear that we must reject the initial appeal of such a “voyage” test and undertake the more difficult task of developing a status-based standard that, although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act’s remedial goals.
Our Jones Act cases establish several basic principles regarding the definition of a seaman. First, “[wjhether under the Jones Act or general maritime law, seamen do not include land-based workers.” Wilander, supra, at 348; see also All-britton, Seaman Status in Wilander’s Wake, 68 Tulane L. Rev. 373, 387 (1994). Our early Jones Act decisions had not recognized this fundamental distinction. In International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926), we held that a longshoreman injured while stowing cargo, and while aboard but not employed by a vessel at dock in navigable waters, was a seaman covered by the Jones Act. Recognizing that “for most purposes, as the word is commonly used, stevedores are not ‘seamen,’” the Court nevertheless concluded that “[w]e cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship.” Id., at 52. Because stevedores are engaged in “a maritime service formerly rendered by the ship’s crew,” ibid. (citing Atlantic Transport Co. of W. Va. v. Imbrovek, 234 U. S. 52, 62 (1914)), we concluded, they should receive the Jones Act’s protections. See also Uravic v. F. Jarka Co., 282 U. S. 234, 238 (1931); Jamison v. Encarnacion, 281 U. S. 635, 639 (1930). In 1946, the Court belatedly recognized that Congress had acted, in passing the LHWCA in 1927, to undercut the Court’s reasoning in the Haverty line of cases and to emphasize that land-based maritime workers should not be entitled to the seamen’s traditional remedies. Our decision in Swanson v. Marra Brothers, Inc., 328 U. S. 1, 7 (1946), acknowledged that Congress had expressed its intention to “confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by [the LHWCA].” See also South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 257 (1940). Through the LHWCA, therefore, Congress “explicitly den[ied] a right of recovery under the Jones Act to maritime workers not members of a crew who are injured on board a vessel.” Swanson, supra, at 6. And this recognition process culminated in Wilander with the Court’s statement that, “[w]ith the passage of the LHWCA, Congress established a clear distinction between land-based and sea-based maritime workers. The latter, who owe their allegiance to a vessel and not solely to a land-based employer, are seamen.” 498 U. S., at 347.
In addition to recognizing a fundamental distinction between land-based and sea-based maritime employees, our cases also emphasize that Jones Act coverage, like the jurisdiction of admiralty over causes of action for maintenance and cure for injuries received in the course of a seaman’s employment, depends “not on the place where the injury is inflicted... but on the nature of the seaman’s service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.” Swanson, supra, at 4. Thus, maritime workers who obtain seaman status do not lose that protection automatically when on shore and may recover under the Jones Act whenever they are injured in the service of a vessel, regardless of whether the injury occurs on or off the ship. In O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36 (1943), the Court held a shipowner liable for injuries caused to a seaman by a fellow crew member while the former was on shore repairing a conduit that was a part of the vessel and that was used for discharging the ship’s cargo. We explained: “The right of recovery in the Jones Act is given to the seaman as such, and, as in the case of maintenance and cure, the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters.” Id., at 42-43. Similarly, the Court in Swanson emphasized that the LHWCA “leaves unaffected the rights of members of the crew of a vessel to recover under the Jones Act when injured while pursuing their maritime employment whether on board... or on shore.” 328 U. S., at 7-8. See also Braen v. Pfeifer Oil Transp. Co., 361 U. S. 129, 131-132 (1959).
Our LHWCA cases also recognize the converse: Land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA, which expressly provides compensation for injuries to certain workers engaged in “maritime employment” that are incurred “upon the navigable waters of the United States,” 33 U. S. C. § 903(a). Thus, in Director, Office of Workers’ Compensation Programs v. Perini North River Associates, 459 U. S. 297 (1983), we held that a worker injured while “working on a barge in actual navigable waters” of the Hudson River, id., at 300, n. 4, could be compensated under the LHWCA, id., at 324. See also Parker v. Motor Boat Sales, Inc., 314 U. S. 244, 244-245 (1941) (upholding LHWCA coverage for a worker testing outboard motors who “was drowned when a motor boat in which he was riding capsized”). These decisions, which reflect our longstanding view of the LHWCA’s scope, indicate that a maritime worker does not become a “member of a crew” as soon as a vessel leaves the dock.
It is therefore well settled after decades of judicial interpretation that the Jones Act inquiry is fundamentally status based: Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore. In spite of this background, respondent and Justice Stevens suggest that any maritime worker who is assigned to a vessel for the duration of a voyage — and whose duties contribute to the vessel’s mission — should be classified as a seaman for purposes of injuries incurred during that voyage. See Brief for Respondent 14; post, at 377 (opinion concurring in judgment). Under such a “voyage test,” which relies principally upon this Court’s statements that the Jones Act was designed to protect maritime workers who are exposed to the “special hazards” and “particular perils” characteristic of work on vessels at sea, see, e. g., Wilander, supra, at 354, the worker’s activities at the time of the injury would be controlling.
The difficulty with respondent’s argument, as the foregoing discussion makes clear, is that the LHWCA repudiated the Haverty line of cases and established that a worker is no longer considered to be a seaman simply because he is doing a seaman’s work at the time of the injury. Seaman status is not coextensive with seamen’s risks. See, e. g., Easley v. Southern Shipbuilding Corp., 965 F. 2d 1, 4-5 (CA5 1992), cert. denied, 506 U. S. 1050 (1993); Robertson 93 (following “the overwhelming weight of authority in taking it as given that seaman status cannot be established by any worker who fails to demonstrate that a significant portion of his work was done aboard a vessel” and acknowledging that “[sjome workers who unmistakably confront the perils of the sea, often in extreme form, are thereby left out of the seamen’s protections” (footnote omitted)). A “voyage test” would conflict with our prior understanding of the Jones Act as fundamentally status based, granting the negligence cause of action to those maritime workers who form the ship’s company. Swanson, supra, at 4-5; O’Donnell, supra, at 42-43.
Desper v. Starved Rock Ferry Co., 342 U. S. 187, 190 (1952), is not to the contrary. Although some language in that case does suggest that whether an individual is a seaman depends upon “the activity in which he was engaged at the time of injury,” the context of that discussion reveals that “activity” referred to the worker’s employment as a laborer on a vessel undergoing seasonal repairs while out of navigation, and not to his precise task at the time of injury. Similarly, despite Justice Harlan’s suggestion in dissent that the Court’s decision in Grimes v. Raymond Concrete Pile Co., 356 U. S. 252 (1958), necessarily construed the word seaman “to mean nothing more than a person injured while working at sea,” id., at 255, our short per curiam opinion in that case does not indicate that we adopted so expansive a reading of the statutory term. Citing our prior cases which emphasized that the question of seaman status is normally for the fact-finder to decide, see, e. g., Senko v. LaCrosse Dredging Corp., 352 U. S. 370, 371-372 (1957); Bassett, 309 U. S., at 257-258, we reversed the judgment of the Court of Appeals and held simply that the jury could have inferred from the facts presented that the petitioner was a member of a crew in light of his overall service to the company (as the District Court had concluded in ruling on a motion for a directed verdict at the close of petitioner’s case). Grimes, supra, at 253. That neither Desper nor Grimes altered our established course in favor of a voyage test is confirmed by reference to our later decision in Braen, supra, at 131, in which we repeated that “[t]he injured party must of course have ‘status as a member of the vessel’ for it is seamen, not others who may work on the vessel (Swanson v. Marra Bros., 328 U. S. 1, 4), to whom Congress extended the protection of the Jones Act.”
We believe it is important to avoid “ ‘engrafting upon the statutory classification of a “seaman” a judicial gloss so protean, elusive, or arbitrary as to permit a worker to walk into and out of coverage in the course of his regular duties.’” Barrett v. Chevron, U. S. A., Inc., 781 F. 2d 1067, 1075 (CA5 1986) (en banc) (quoting Longmire v. Sea Drilling Corp., 610 F. 2d 1342, 1347, n. 6 (CA5 1980)). In evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ “a ‘snapshot’ test for seaman status, inspecting only the situation as it exists at the instant of injury; a more enduring relationship is contemplated in the jurisprudence.” Easley, supra, at 5. Thus, a worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured. Reeves v. Mobile Dredging & Pumping Co., 26 F. 3d 1247, 1256 (CA3 1994). Unlike Justice Stevens, see post, at 383, we do not believe that any maritime worker on a ship at sea as part of his employment is automatically a member of the crew of the vessel within the meaning of the statutory terms. Our rejection of the voyage test is also consistent with the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act (and, perhaps more importantly for purposes of the employers’ workers’ compensation obligations, who will be covered by the LHWCA) before a particular workday begins.
To say that our cases have recognized a distinction between land-based and sea-based maritime workers that precludes application of a voyage test for seaman status, however, is not to say that a maritime employee must work only on board a vessel to qualify as a seaman under the Jones Act. In Southwest Marine, Inc. v. Gizoni, 502 U. S. 81 (1991), decided only a few months after Wilander, we concluded that a worker’s status as a ship repairman, one of the enumerated occupations encompassed within the term “employee” under the LHWCA, 33 U. S. C. § 902(3), did not necessarily restrict the worker to a remedy under that statute. We explained that, “[w]hile in some cases a ship repairman may lack the requisite connection to a vessel in navigation to qualify for seaman status,... not all ship repairmen lack the requisite connection as a matter of law. This is so because ‘[i]t is not the employee’s particular job that is determinative, but the employee’s connection to a vessel.’” Gizoni, supra, at 89 (quoting Wilander, 498 U. S., at 354) (footnote omitted). Thus, we concluded, the Jones Act remedy may be available to maritime workers who are employed by a shipyard and who spend a portion of their time working on shore but spend the rest of their time at sea.
Beyond these basic themes, which are sufficient to foreclose respondent’s principal argument, our cases are largely silent as to the precise relationship a maritime worker must bear to a vessel in order to come within the Jones Act’s ambit. We have, until now, left to the lower federal courts the task of developing appropriate criteria to distinguish the “ship’s company” from those members of the maritime community whose employment is essentially land based.
C
The Court of Appeals for the First Circuit was apparently the first to develop a generally applicable test for seaman status. In Carumbo v. Cape Cod S. S. Co., 123 F. 2d 991 (1941), the court retained the pre-Swanson view that “the word ‘seaman’ under the Jones Act [did] not mean the same thing as ‘member of a crew’ under the [LHWCA],” 123 F. 2d, at 994. It concluded that “one who does any sort of work aboard a ship in navigation is a ‘seaman’ within the meaning of the Jones Act.” Id., at 995. To the phrase “member of a crew,” on the other hand, the court gave a more restrictive meaning. The court adopted three elements to define the phrase that had been used at various times in prior cases, holding that “[t]he requirements that the ship be in navigation; that there be a more or less permanent connection with the ship; and that the worker be aboard primarily to aid in navigation appear to us to be the essential and decisivé elements of the definition of a ‘member of a crew.’ ” Ibid. Cf. Senko, supra, at 375 (Harlan, J., dissenting) (“According to past decisions, to be a ‘member of a crew’ an individual must have some connection, more, or less permanent, with a ship and a ship’s company”). Once it became clear that the phrase “master or member of a crew” from the LHWCA is coextensive with the term “seaman” in the Jones Act, courts accepted the Carumbo formulation of master or member of a crew in the Jones Act context. See Boyd v. Ford Motor Co., 948 F. 2d 283 (CA6 1991); Estate of Wenzel v. Seaward Marine Services, Inc., 709 F. 2d 1326, 1327 (CA9 1983); Whittington v. Sewer Constr. Co., 541 F. 2d 427, 436 (CA4 1976); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F. 2d 31, 36 (CA3 1975), cert. denied, 423 U. S. 1054 (1976); McKie v. Diamond Marine Co., 204 F. 2d 132, 136 (CA5 1953). The Court of Appeals for the Second Circuit initially was among the jurisdictions to adopt the Carumbo formulation as the basis of its seaman status inquiry, see Salgado v. M. J. Rudolph Corp., 514 F. 2d, at 755, but
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond1_1_3
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
NATIONAL LABOR RELATIONS BOARD v. POLSON LOGGING CO.
No. 10342.
Circuit Court of Appeals, Ninth Circuit.
June 10, 1943
Robert B. Watts, Gen. Counsel, N. L. R. B., Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel., and Roman Beck and Platonia P. Kaldes, Attys., N. L. R. B., all of Washington, D. C., for petitioner.
R. W. Maxwell, of Seattle, Wash., for respondent.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
DENMAN, Circuit Judge.
The Board seeks our enforcement of its order that respondent cease and desist from (a) discouraging membership in the Brotherhood of Railway Trainmen, hereinafter called the Brotherhood, or any other labor organization of its employees, by laying off, discharging, refusing to reinstate them or otherwise discriminating against them in regard to their hire or tenure of employment ; (b) from otherwise interfering with, coercing or restraining its employees in the exercise of their right guaranteed by § 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; and that respondent take affirmative action (c) by offering reinstatement to two discharged railway employees and (d) make good their back pay, with the usual requirement for the posting of notices.
Respondent corporation is engaged in felling timber and transporting logs by rail from its forests. It is not questioned that it is engaged in interstate commerce.
Respondent’s employees, both loggers and trainmen, had been organized in the Carpenters and joiners of America, an affiliate of the American Federation of Labor. After a prolonged strike, they transferred their allegiance to the International Woodworkers of America, an affiliate of the Congress of Industrial Organizations, which became the bargaining agent of all the men. In 1940, certain railway employees sought to effect an organization of the railway men in one of the railway Brotherhoods. There is substantial evidence that respondent’s manager and assistant superintendent, in charge of railway operations, were strongly opposed to such an organization as likely to cause labor struggle between the A. F. of L. and C. I. O. interests, with the consequent interference with log production.
The assistant superintendent suggested to certain railway employees that one C. B. Groves, one of the organizers, was a “trouble maker.” Groves was threatened with discharge by his camp foreman, Vic Lehman, who had the power to “hire and fire,” and told Groves, “I just want to say you had better be careful what you say about the Brotherhood; somebody is going to be let out, and it might be you.”
There was also testimony that the assistant superintendent stated to a railway employee that the Brotherhood movement would lead to a shut down and also to a cessation of respondent’s railway operations which would be taken over by the Northern Pacific Railway. We hold that there is substantial evidence of a violation of § 8(1) of the Act, 29 U.S.C.A. § 1.58(1), prohibiting interference and restraint in the self-organization for the purpose of collective bargaining, and warranting the cease and desist orders (a) and (b).
Respondent discharged two railway employees, Lytle and Reece. Lytle was an active leader in the railway organizational movement. Reece was secretary of the trainmen’s executive committee. Both had been employed as railway brakemen by respondent for substantial periods — Lytle for several years; Reece for over a year. They were discharged for the purported reason that they had violated a safety rule requiring them to stand on the forward end of a flat car ahead of the locomotive of a logging train, when it was about to cross a highway.
There was evidence from which the Board could infer that the men, who were inside the housing on the rear of the car, as well could have made the crossing safe from the position in which they stood and from which they had a clear view of vehicles on the highway approaching the crossing, and that there was but a technical violation of the rule.
There was also evidence from which the Board could infer that the purpose of the discharge of the two organizers, rather than a reprimand or a short lay-off, was to coerce, by such discrimination, the other railway employees seeking to organize the Brotherhood.
Reece, as spokesman for the railway employees, had presented to respondent’s general manager their request for the recognition of the Brotherhood. The general manager expressed his opposition. Three days later, Lytle and Reece were assigned to a braking crew whose duties would require them to be on the front of the flat car on crossing the highway. The assistant superintendent, who, from prior experience, well could have expected the men to stay in the housing and not go to the end of the car, drove from the company camp to and across the crossing and stopped his automobile there just before the approach of the logging train. JMo other automobile was in sight and no one on the highway could have been in danger. The assistant superintendent observed that Lytle and Reece did not come to the end of the car and immediately returned to the camp where he reported the matter to the general manager. The next morning the two men were laid off and shortly thereafter discharged.
We hold that the Board had reasonable ground to infer that the assignment of the men to the particular train, shortly after Lytle’s demand for Brotherhood recognition, the purposeful follow-up of the superintendent for the expected minor infraction of the rule, and the drastic punishment of the discharges were discriminatory acts in violation of § 8(3) of the Act and were purposed to remove the men — not for the good of the operation, — but to prevent their and their companions’ further organizing activities.
The petition of the Board for the enforcement of its order is granted.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_circuit
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Roy J. POGUE, Defendant-Appellant.
No. 87-2286.
United States Court of Appeals, Tenth Circuit.
Jan. 12, 1989.
Robert N. Miller, U.S. Atty., Bruce F. Black, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.
Roy J. Pogue, pro se.
Before McKAY, SEYMOUR, and HIGGINBOTHAM, Circuit Judges.
The Honorable Patrick E. Higginbotham, Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.
PER CURIAM.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.
On October 22, 1985, defendant pled guilty to two counts of wire fraud under 18 U.S.C. § 1343. At that time, he was informed by the district court that he faced a maximum possible sentence of ten years imprisonment and a $2,000 fine. One month later, the district court imposed a sentence of four and one-half years prison time and five years probation on the respective counts. As a condition of probation, the court ordered defendant to make restitution to two of the banks he had defrauded in the total amount of $1,758,-091.14, pursuant to the Victim and Witness Protection Act, 18 U.S.C. § 3579 (renumbered as 18 U.S.C. § 3663 effective Nov. 1, 1986).
In June 1987, defendant filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255, raising the following grounds in support of the relief requested:
(1) Breach of defendant’s plea agreement, which did not include any provision regarding restitution;
(2) Failure to inform defendant prior to pleading that restitution could be a part of the sentence imposed; and
(3) Failure to give proper consideration to the factors governing calculation of restitution.
The district court denied defendant’s motion, and this appeal followed.
I.
When the government obtains a guilty plea based upon an agreement between the defendant and the U.S. Attorney, the agreement must be fulfilled in order to maintain the integrity of the plea. United States v. Stemm, 847 F.2d 636, 637 (10th Cir.1988). In considering any claim that such an agreement has been breached, we must first determine the nature of the prosecutor’s promise. Id. This determination must be based upon “what the defendant reasonably understood when he entered his plea,” without “resortpng] to a rigidly literal approach in the construction of language.” United States v. Greenwood, 812 F.2d 632, 635 (10th Cir.1987). The plea agreement in this case provided only that the government would bring no further charges in return for defendant’s agreement to plead guilty. The agreement contained no provision regarding sentencing, and the government was free at sentencing to “make any statements in ... aggravation.” See Plea Agreement, Exhibit A. Therefore, the government’s recommendation and the Court’s imposition of restitution could not have been contrary to defendant’s reasonable understanding regarding sentencing. See United States v. Pomazi, 851 F.2d 244, 250-51 (9th Cir.1988) (government did pot breach plea agreement by recommending restitution where plea agreement silent as to sentencing).
II.
The second ground advanced in the motion is more problematic. At the time defendant changed his plea to guilty, he was entitled to an explanation of the consequences of conviction, including the court’s authority to order restitution. See Fed.R. Crim.P. 11(c)(1), as amended effective August 1, 1985; see e.g., United States v. Com, 836 F.2d 889, 893 (5th Cir.1988). Both the record of defendant’s plea hearing and his written statement in advance of plea corroborate defendant’s claim that he was not informed by the district court of the possibility of restitution prior to entering his plea. Indeed, absent testimony from former defense counsel, who has never been called upon to relate what information, if any, he provided defendant on the subject, the earliest we can say defendant knew he could be ordered to pay restitution was thirty minutes before sentencing, when the government first served defendant with its motion for the $1,758,091.14 in restitution.
The government essentially concedes that Rule 11 was violated, but argues that neither vacatur of defendant’s conviction nor correction of his sentence is warranted at this late stage in the proceedings. The government relies on United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), in which the Supreme Court indicated that a violation of Rule 11 that does not implicate constitutional or jurisdictional concerns will not support a collateral attack on a guilty plea unless the error resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Id. at 783-84, 99 S.Ct. at 2087-88. In the government’s view, such exceptional circumstances do not obtain here, and the rejection of defendant’s Rule 11 claim should therefore be affirmed. The government emphasizes that defendant ád-mittedly knew about the potential for restitution prior to imposition of sentence but, despite that knowledge, persisted with his guilty plea and took no appeal from his sentence. The district court agreed with the government’s position, and summarily denied defendant’s motion on this basis.
Before we address defendant’s explanation for not abruptly withdrawing his plea at sentencing or at least raising some objection to restitution on a direct appeal, we note several important factors that distinguish this case from Timmreck. First and foremost, the sentence actually imposed in Timmreck did not exceed the maximum penalty the defendant had been (inaccurately) warned about, so the Court could properly conclude that the defendant had not suffered any prejudice as a result of the initial understatement of the maximum potential sentence. See id. at 782-83, 99 S.Ct. at 2086-87. This is also true of the several cases from this circuit that have denied relief under § 2255 for Rule 11 violations. See United States v. Sisneros, 599 F.2d 946, 948-50 (10th Cir.1979); United States v. Eaton, 579 F.2d 1181, 1183 (10th Cir.1978); Evers v. United States, 579 F.2d 71, 72-3 (10th Cir.1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1253, 59 L.Ed.2d 478 (1979); United States v. Hamilton, 553 F.2d 63, 66 (10th Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); see also Hicks v. Oliver, 523 F.Supp. 64, 67 (D.Kan.1981) (summarizing the thrust of Timmreck and Eaton as follows: “Courts may grant relief ... only where the total custodial time [actually imposed] ... exceeds the maximum possible sentence which the court told the defendant he might receive”). In the instant case, however, the $2,000 fine defendant was advised about prior to his plea is not remotely comparable in amount to the $1,758,091.14 restitution ultimately ordered by the district court. And this is not just a matter of money, because defendant may serve his five-year probation term in prison if he fails to make restitution. In short, defendant can realistically claim prejudice not presented in Timmreck or similar cases from this circuit.
Second, the Court found it significant in Timmreck that the defendant “[did] not argue that he was actually unaware of the [potential sentence] or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim was of a technical violation of the Rule.” United States v. Timmreck, 441 U.S. at 784, 99 S.Ct. at 2087. By contrast, defendant here maintains, not without credibility on this record, that he was unaware of the possibility of restitution until he heard about it at sentencing and that, had he been told of his immense exposure to financial liability, he would not have agreed to plead guilty.
Finally, in Timmreck, the defendant’s § 2255 motion was denied only after an evidentiary hearing at which former defense counsel testified that it was his routine practice to inform his clients about the very aspect of the defendant’s potential sentence that the trial court had failed to explain (i.e., the mandatory special parole term under 21 U.S.C. § 841). Id. at 782, 99 S.Ct. at 2086. This consideration is absent in the present case, where defendant’s § 2255 motion was denied without a hearing or comparable evidentiary development, and therefore without an opportunity to examine the possibility of prejudice.
All of these distinctions would be beside the point, however, if, as the government contends, defendant was given an opportunity to withdraw his plea after he was told about restitution at the sentencing hearing. In that case, we could confidently say that defendant suffered no prejudice from the omission of any reference to restitution at the time of his plea. See United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987) (failure to inform defendant about restitution prior to guilty plea did not justify collateral relief where defendant declined opportunity to withdraw his plea after becoming aware of this potential consequence). The government points out that defendant responded affirmatively when the district court inquired, during the opening moments of sentencing, whether he was “persisting or continuing” in his plea. However, defendant argues, with some force, that repeated admonishments from the bench at his plea hearing, to the effect that he would not thereafter be allowed to change his plea or appeal from his conviction, had misled him to believe his guilty plea was no longer open to alteration by the time he learned of the possibility of restitution. Absent evidence that counsel cleared up this alleged misunderstanding, it cannot be said that defendant was given a realistic opportunity to withdraw his plea after being informed restitution could be ordered. We therefore cannot conclude that defendant waived objection to restitution under the principles discussed in Gre-wal.
For the above reasons, we believe defendant has demonstrated a sufficiently substantial Rule 11 violation to be cognizable in a proceeding under 28 U.S.C. § 2255. Defendant has advanced a credible, largely undisputed factual claim of prejudice, as well as a facially sufficient explanation for his failure to raise the issue before. We note, however, that the summary nature of the district court’s disposition of defendant’s § 2255 motion left the government no occasion to present evidence potentially demonstrating that defendant actually had notice prior to pleading, from some source other than the court, that restitution could be ordered as part of his sentence, or that he was in fact aware of his right to seek withdrawal of his guilty plea after learning of this possibility. Defendant’s claims would be significantly undercut if the government established either of these alternatives. With this in mind, we believe the government should be permitted to attempt such a showing on remand, if it so wishes. Accordingly, the denial of defendant’s § 2255 motion is vacated with respect to the second ground asserted therein and the cause remanded to enable the district court to undertake one of the following courses of action: (1) further evidentiary development to determine when defendant was first made aware that restitution could be ordered and whether defendant understood that he was entitled to seek leave to withdraw his plea at that time; (2) resen-tencing without reference to restitution; or (3) vacatur of defendant’s conviction to permit him to withdraw his plea and face trial.
III.
Finally, we turn to defendant’s contention that the district court’s calculation of restitution constituted an abuse of its substantial discretion in this area of sentencing. See generally United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984). We need not address defendant’s specific arguments on this issue, because defendant and defense counsel stipulated on the record to the amount of restitution imposed and expressly waived any evidentiary hearing on the issue at sentencing. See United States v. McMichael, 699 F.2d 193, 195 (4th Cir.1983) (district court authorized to order restitution in any amount up to the sum defendant and counsel agreed to at sentencing hearing); see also United States v. Davies, 683 F.2d 1052, 1055 (7th Cir.1982) (denial of Fed.R.Crim.P. 35 challenge to size of restitution order affirmed in part because the order had been limited to “the amount of ... defendant’s admitted depredations”); see generally United States v. Franks, 723 F.2d 1482, 1487 (10th Cir.1983) (in criminal prosecution for violation of tax laws, defendant may not be required to pay specific sum for unpaid taxes as condition for parole unless the amount has been conclusively established in the criminal proceeding, finally determined in civil proceedings, or acknowledged by defendant), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984).
The order of the United States District Court for the District of Colorado denying defendant’s § 2255 motion is AFFIRMED as it relates to the first and third grounds raised by defendant but VACATED as to ground two, 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:
|
sc_decisiontype
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
ROBERTS v. LaVALLEE, WARDEN.
No. 193,
Misc.
Decided October 23, 1967.
Warren H. Greene, Jr., for petitioner.
Leon B. Polsky for the Legal Aid Society of New York, as amiaus curiae, in support of the petition.
Per Curiam.
Petitioner is an indigent. He was charged with robbery, larceny, and assault in New York. When his case was called for trial, petitioner asked that the court furnish him, at state expense, with the minutes of a prior preliminary hearing, at which the major state witnesses had testified. A New York statute provided that a transcript of the hearing would be furnished “on payment of . . . fees at the rate of five cents for every hundred words.” N. Y. Code Crim. Proc. § 206. The trial court denied the request for a free transcript.
Petitioner was convicted of the crimes charged and sentenced to a term of 15-20 years in prison. His conviction was affirmed by the Appellate Division of the New York Supreme Court. The New York Court of Appeals denied leave to appeal. We denied a petition for certiorari. The issue under the Federal Constitution of the denial of the preliminary hearing transcript was raised by petitioner at each stage of these proceedings.
Petitioner next applied for habeas corpus in the Northern District of New York. His petition was denied, the court believing that petitioner had no federal constitutional right to a free transcript of his preliminary hearing. Thereafter, the New York Court of Appeals decided People v. Montgomery, 18 N. Y. 2d 993, 224 N. E. 2d 730 (1966). That case holds that the statutory requirement of payment for a preliminary hearing transcript, as applied to an indigent, is a denial of equal protection and unconstitutional, under both the Federal and State Constitutions.
On petitioner’s appeal from the District Court, the Court of Appeals for the Second Circuit determined that petitioner should apply to the state courts for relief under the doctrine of Montgomery. The court acknowledged that petitioner had already exhausted his state remedies. But it thought the “constitutional necessity for federal court intervention” was “open to doubt” and that “the question ought to be decided in favor of permitting a state court determination in the first instance.” Accordingly, it dismissed the petition for habeas corpus without prejudice to renewal of the questions presented by petitioner after further proceedings in the courts of New York.
Petitioner sought certiorari. We grant the writ, and we vacate the judgment below.
Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. See, e. g., Draper v. Washington, 372 U. S. 487 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). Only last Term, in Long v. District Court of Iowa, 385 U. S. 192 (1966), we reiterated the statement first made in Smith v. Bennett, 365 U. S. 708, 709 (1961), that “to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.” We have no doubt that the New York statute struck down by the New York Court of Appeals in Montgomery, as applied to deny a free transcript to an indigent, could not meet the test of our prior decisions.
Nor do we believe there can be any doubt that petitioner adequately made known his desire to obtain the minutes of his preliminary hearing. We agree with Judge Medina, dissenting in the Court of Appeals, that the demand was “clear and unequivocal.”
In Brown v. Allen, 344 U. S. 443 (1953), we considered the statutory requirement, under 28 U. S. C. § 2254, that a petitioner exhaust his state remedies before applying for federal habeas corpus relief. We concluded that Congress had not intended “to require repetitious applications to state courts.” 344 U. S., at 449, n. 3. We declined to rule that the mere possibility of a successful application to the state courts was sufficient to bar federal relief. Such a rule would severely limit the scope of the federal habeas corpus statute.
The observations made in the Brown case apply here. Petitioner has already thoroughly exhausted his state remedies, as the Court of Appeals recognized. Still more state litigation would be both unnecessarily time-consuming and otherwise burdensome. This is not a case in which there is any substantial state interest in ruling once again on petitioner’s case. We can conceive of no reason why the State would wish to burden its judicial calendar with a narrow issue the resolution of which is predetermined by established federal principles.
The motion for leave to proceed in forma pauperis and the writ of certiorari are granted, the judgment is vacated, and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_appstate
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Nazareth GATES et al., Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. John COLLIER, Superintendent, Mississippi State Penitentiary, et al., Defendants-Appellants.
No. 73-1790.
United States Court of Appeals, Fifth Circuit.
Dec. 5, 1973.
A. F. Summer, Atty. Gen. of Miss., William A. Allain, Asst. Atty. Gen., P. Roger Googe, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants-appellants.
Roy S. Haber, Native American Rights Fund, Boulder, Colo., Frank R. Parker, Jackson, Miss., Edward J. Reilly, New York City, for plaintiffs-appel-lees.
Michael Davidson, Jesse H. Queen, Thomas R. Sheran, U. S. Dept, of Justice, Civil Rights Div., Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for intervenor.
Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
TUTTLE, Circuit Judge:
This appeal deals only with the correctness of the judgment of the trial court awarding attorney' fees to the plaintiffs in this prisoner suit. It grew out of, and is a companion case to, Gates, et al., and United States v. John Collier,' Superintendent, etc., No. 73-1023, which is under submission to this Court.
In the original complaint, filed by counsel now seeking counsel fees, and later supported by the United States of America, which intervened in the trial court the principal allegations were:
There are two classes for whose benefit suit was brought by the named plaintiffs: (1) a class composed of all present and future inmates of Mississippi State Prison (Parchman); (2) a class composed of present and future black inmates of Parchman.
Each class alleged that it was subjected to the deprivation of rights and to conditions and practices which amounted to cruel and unusual punishment, that it was subjected to censorship of its mail and that it was deprived of the due process of law in violation of the first, eighth and fourteenth amendments. Each class further alleged that it had been deprived of the equal rights under law guaranteed to it by 42 U.S.C.A. § 1981, of the rights, privileges and immunities guaranteed to it by 42 U.S.C.A. § 1983, and had been subjected to a conspiracy to interfere with its civil rights in violation of 42 U.S.C.A. § 1985.
In addition, the class composed of present and future black inmates alleged it was deprived of its fourteenth amendment right to equal protection by virtue of being segregated from other inmates and of being incarcerated under worse conditions than other inmates.
Plaintiffs sought an injunction against the deprivation of such rights during their incarceration and against certain practices and conditions existing at Parchman. Plaintiffs also sought a declaratory judgment that the deprivation of such rights and the continuation of such practices and conditions were unconstitutional.
All parties conducted extensive pretrial discovery proceedings. Plaintiffs’ counsel expended considerable time, money and energy gathering proof. His affidavit in the court below details all the hours and services he was forced to expend on plaintiffs’ behalf to prosecute a wholly unnecessary action in the face of an unyielding defense. On May 11, 1972, four days before trial, counsel for all parties agreed to waive presentation of evidence in open court and to submit the case on the record including pleadings, stipulations, depositions, interrogatories and answers, offers of proof, factual summaries, proposed trial plans, ev-identiary synopses, photographs, exhibits, reports and other documentary evidence assembled by the parties. All of these items were admitted into evidence, defendants stipulating that they would, not contest the facts set forth therein.
Moreover, the Governor himself, seeking to limit the record, asked the Court: “Isn’t there enough of the incriminating facts in these depositions and interrogatories to give the Court adequate grounds to find a conclusion of fact that the first amendment and all other constitutional provisions,have been violated . ?” The Governor of the State of Mississippi in fact conceded: “We are, in effect, Your Honor admitting that the constitutional provisions have been violated.” This was well over a year after the action was brought and years after the major constitutional violations had occurred.
Among the district court’s findings, Gates v. Collier, 349 F.Supp. 881 (N.D. Miss.1972), were the following:
1. The policy and practice at Parchman has been and is to maintain a system of prison facilities segregated by race through which black inmates are subject to disparate and unequal treatment. (Finding # 7)
2. The housing units at Parchman are unfit for human habitation. Facilities for the disposal of human waste at all camps are shockingly inadequate and present an immediate health hazard. Contamination of the prison water supply caused by inadequate sewerage has led to the spread of infectious diseases. (Finding #8)
3. The medical staff and available facilities at Parchman fail to provide adequate medical care for the inmate population. (Finding # 11)
4. All inmates, except those confined in the Maximum Security Unit, are housed in open barracks known as “cages.” The risk of personal injury created by cage confinement is increased by (a) defendants’ failure to classify inmates, (b) the prison's reliance on inmates rather than trained guards, and (c) the failure of prison authorities to confiscate weapons. (Finding # 12)
5. Armed inmate trusties, selected without objective criteria or uniform standards and insufficiently trained to cope with their duties, perform the primary guard function at Parchman. Apart from abusing their authority and engaging in loan-sharking, extortion and other illegal conduct, the trusties at Parchman have shot, maimed or otherwise physically maltreated scores of inmates subject to their control. (Findings # 13 and #14)
6. Inmates at Parchman relegated to the punishment side of the Maximum Security Unit have often been placed in the “dark hole” without clothes, hygiene materials or adequate food for periods of 48 to 72 hours. (Finding # 17)
7. Physical brutality is regularly inflicted on inmates by prison authorities. (Finding # 18)
8. Inmates subject to disciplinary action for alleged violations of prison rules are deprived of any semblance of procedural or substantive due process. (Findings # 19 and #20)
9. Illegal censorship of prisoners’ mail is commonplace. (Findings # 21)
Following a hearing on the proper form of relief, the court entered judgment on October 20, 1972, Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), restraining defendants and their agents from
“performing, causing to be performed or permitting to continue acts, practices and conditions found to exist in connection with the maintenance, operation and administration of the Mississippi State Penitentiary at Parch-man, Mississippi, in violation of the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.” 349 F.Supp. at 898.
The court’s judgment, in conformity with its findings and conclusions, specifically enjoined continued constitutional violation and mandated defendants to rectify each unconstitutional condition and practice.
Defendants have appealed from the judgment (Appeal No. 73-1023 before this Court). Having admitted to all the facts and conceding the constitutional violations, defendants have nevertheless appealed from the judgment on the ground that the complaint fails to state a recognized cause of action. Furthermore, defendants continually sought extensions and delays from compliance with the district court’s orders. Defendants’ submission of plans required by the district court’s order have been found to be inadequate even after substantial delays and defendants continue to delay and obstruct any improvement in the conditions at Parchman. Such delays have necessitated the expenditure of additional time and money by plaintiffs’ counsel.
On July 25, 1972, while the case was pending before the district court, plaintiffs’ counsel moved for an award of attorney’s fees and expenses. Defendants opposed the motion. In support of the motion plaintiffs’ counsel filed a memorandum of law, an affidavit detailing his hours, the services performed and the expenses incurred, and the affidavits of two experienced attorneys practicing in the same area regarding the reasonableness of the requested fees. Plaintiffs’ counsel’s affidavit shows the many hours of work required to marshall all the evidence which forced defendants to concede and forego trial.
On February 14, 1973, the district court awarded plaintiffs’ counsel $41,750 for services and $10,986.05 for costs and expenses incident to maintenance of the action. The award did not run against the defendants personally or individually but in their official capacities and was directed to be paid from the operating funds of Parchman. The defendants have now appealed from this award of attorney’s fees and expenses.
The parties do not dispute the correctness of the trial court’s standard for determining whether attorney’s fees should be awarded; the court based its decision on a finding that the defendants’ conduct was violative of the plaintiffs’ constitutional rights and that their unlawful conduct was “unreasonably and obdurately obstinate.”
There can be no question about the adequacy of the trial court’s findings to warrant the awarding of attorney’s fees:
“In the instant case, we have no 0 difficulty in finding that defendants’ actions were unreasonable and obdurately obstinate. From commencement of the suit on February 8, 1971, defendants staunchly denied the existence of unconstitutional practices and conditions at Parchman. Defendants continued to adhere to this position at several lengthy evidentiary hearings of an interlocutory nature. The position thus consistently maintained by defendants compelled plaintiffs’ attorney to expend time and expenses which otherwise would not have been incurred. Consequently in preparation of plaintiffs’ case, plaintiffs’ attorney engaged in extensive pre-trial discovery, made numerous trips to Parchman, interviewed hundreds of inmates, and submitted a plethora of motions and accompanying legal mem-oranda. We are convinced that only because of the overwhelming magnitude of evidence gathered by plaintiffs’ attorney in cooperation with the Department of Justice in support of the allegations contained in the complaint did defendants in effect recognize the futility of a full evidentiary hearing and submit the case on a virtually agreed record.
******
“As set forth in this court’s Findings of Fact, the unconstitutional conditions and practices at Parchman have long existed as a result of public and official apathy, despite the notoriety of matters affecting prison administration stemming from prior reports to the State Legislature and widespread publicity of the news media. The court in its previous findings simply declared facts that were well documented and known to all interested in the subject. Constitutional rights of inmates may not be thwarted or ignored because of frequent changes in prison personnel and officials. We now hold that the state of the law in the area of prisoner rights was sufficiently settled so that it should have been unnecessary for this action to be brought; this suit was necessary only because of defendants’ unreasonable refusal to comply with accepted constitutional principles. We are further convinced that the unnecessary delay, extraordinary efforts and burdensome expenses incurred incident to the resolution of this case were occasioned because of' defendants’ maintenance of their defense in an obdurately obstinate manner. Thus, plaintiffs’ attorney is entitled to reasonable fees and expenses.”
See on the general issue of attorney’s fees in civil rights litigation Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).
The only issue of concern in this appeal arises from the fact that the trial court fashioned its decree for attorney's fees in a manner that caused the defendants to challenge .this award as being prohibited by the principle of sovereign immunity and, by analogy, to the eleventh amendment to the United States Constitution. See Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889). This contention is a familiar one in cases in which courts have entertained actions against state officials, boards and commissions in equity. See, e.g., Orleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir. 1957) and the many school cases subsequently decided by this Court.
In Sims v. Amos, 336 F.Supp. 924, 340 F.Supp. 691 (M.D.Ala.1972), aff’d., 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), the District Court for the Middle District of Alabama dealt with the award of attorney’s fees and expenses incurred in a suit against the Governor, state legislators, the attorney general and the secretary of state of Alabama. The Court expressly held against the “Alabama State Legislators, the Governor, the Attorney General and the Secretary of State.”
In their jurisdictional statement to the Supreme Court, the defendants in Sims stated:
“the award to the plaintiffs of their attorney's fees and expenses incurred and in the taxing of these items as costs against the defendants who are elected state officials sued in their official capacity . . . was tantamount to the award of a money judgment against the State of Alabama in direct violation of the doctrine of sovereign immunity.”
The Supreme Court affirmed the judgment of the three-judge district court without opinion. In the California case of La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), the court noted:
“That federal courts have awarded attorney’s fees to successful litigants against state officers without statutory authority cannot be denied. See, e. g., Sims v. Amos, supra, (Governor of Alabama and Secretary of State) Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala. decided April 13, 1972), (State regulatory agency). See also, Cooper v. Allen, supra, (Mayor of Atlanta, Georgia); Brewer v. School Board of Norwalk (sic), supra [456 F.2d 943] (school board); Hammond v. Housing Authority & Urban Renewal Agency of Lane County, 328 F. Supp. 586 (D.Or.1971), (municipal housing authority). But of course, the eleventh amendment has been read not to apply to local bodies. Lincoln County v. Luning, 133 U.S. 529, 10 S. Ct. 363, 33 L.Ed. 766 (1890).
“Since we conclude as the court did in Sims that the state may no more immunize an individual from costs incident to an injunction than it may insulate him from the injunction itself, we find that sovereign immunity does not bar an award of attorney’s fees against Chief Engineer Legarra. . . . ” 57 F.R.D. at 101-102.
This Court has said that in such a suit as this the award of attorney’s fees is not an award of damages against the State, even though funds for payment of the costs may come from the state appropriations. In Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970) we said:
“Section 1983 was designed to provide a comprehensive remedy for the deprivation of federal constitutional and statutory rights. The prayer for back pay is not a claim for damages, but is an integral part of the equitable remedy of injunctive reinstatement.” 427 F.2d at 324.
Although the trial court had the power to assess attorney’s fees and expenses against the individual defendants found to have engaged in the unconstitutional conduct, we think it does not vitiate the award because the trial court prescribed that this part of the costs were to be payable “from funds which the Mississippi Legislature, at its 1973 Session, may appropriate for the operation of the Mississippi State Penitentiary,” and were not to be “the personal, or individual, liability of the varied defendants or any of them.” See also, the following cases which have dealt with this question: La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972); Brewer v. School Board of City of Norfolk, Va., 456 F.2d 943 (4th Cir. 1972) cert. den., 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Thompson v. Richland Parish Police Jury, 5 Cir., 478 F.2d 1401 [No. 72-3413, June 13,1973]; Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972).
The judgment appealed from is affirmed.
. While we adopt the standard agreed to by the parties and applied by the district court, we note that different standards than ‘unreasonably and obdurately obstinate’ have occasionally been found applicable by federal courts. One such standard is that plaintiff’s counsel is entitled to attorneys’ fees on the private attorney general theory.
The private attorney general theory is derived from the Supreme Court opinions in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263; and Mills v. Electric Auto-Lite Co., 396 U.S. 375 at 389-397, 90 S.Ct. 616, 24 L.Ed.2d 593. The theory is that private plaintiffs have aided in effectuating important Congressional and public policies. Attorneys fees have not only been granted in suits brought under the Civil Rights Acts, 42 U.S.C.A. §§ 1981, 1982, 1983, e.g., Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.1972) (3 judge court) (§ 1983) ; Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) (§ 1981); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (§ 1982); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (§ 1982); Jinks v. Mays, 350 F.Supp. 1037 (N.D.Ga.1972) (§§ 1981-1983); N.A.A.C.P. v. Allen 340 F.Supp. 703, 708-710 (M. D. Ala.1972) (§ 1983), but also under various other federal statutes, e.g., Yablonski v. United Mine Workers, 151 U.S.App.D.C. 253, 466 F.2d 424 (1972), cert. denied, 412 U.S. 918, 93 S.Ct. 2729, 37 L.Ed.2d 144 (1973) (Labor-Management Recording and Disclosure Act); La Raza Unida v. Volpe, 57 F.R.D. 94 (N. D.Cal.1972) (various federal transportation statutes).
. In which event, of course, everyone knows they would be “bailed out” by the State.
. No contention is made by the appellants that the other elements of the costs of litigation, perhaps quite substantial, could not be taxed in the manner in which the attorney’s fees and expenses were charged,
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
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.
SNIDER v. KELLY et al.
No. 8231.
United States Court of Appeals for the District of Columbia.
Decided April 26, 1943.
Mr. Cornelius H. Doherty, of Washington, D. C., for appellant.
Mr. Thomas S. Jackson, of Washington, D. C., with whom Messrs. Louis M. Denit and John L. Laskey, both of Washington, D. G, were on the brief, for appellees other than Hilda F. Kelly and Vida Clyde Kelly.
Mr. Irving Wilner, of Washington, D. G, for appellees Hilda F. Kelly and Vida Clyde Kelly.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
MILLER, Associate Justice.
On February 23, 1938 appellant sued appellee Vida Ruth Kelly to recover on a promissory note. On March 1, 1938 appellee conveyed all her interest in real property, situated at 1608-17th Street, N. W., in Washington, D. G, to her brother James Merrill Kinsell, without consideration. On November 14, 1938 judgment was entered in favor of appellant, and against appellee, in his action on the promissory note; execution was issued, but without avail. On November 28, 1938 appellant commenced action in the District Court to set aside the conveyance from appellee to her brother. From a judgment in favor of appellees, this appeal was taken.
Relying upon Section 12 — 401 of the District of Columbia Code, appellant contends that the conveyance by appellee to her brother was fraudulent and void; that the only possible defense available to a debtor under such circumstances is to prove a sale to an innocent third person, for a valuable consideration; that, as thq conveyance was made without consideration, appellee’s intention was immaterial. But the Code section is not properly susceptible of that interpretation. It provides expressly that the question of fraudulent intent is one of fact and not of law.
When the issue is presented to a trial court, its duty is to determine, from the facts and circumstances surrounding the transactions of the parties, whether the proscribed intent was present: in doing so, it should apply the rule that parties intend the natural and probable consequences of their acts; and “if the inevitable consequences of a conveyance are to hinder, delay, 'or defraud creditors, the court must so hold notwithstanding the denial of such intent by the parties to such conveyance.” [Italics supplied.] If, on the other hand, it appears, from all the facts and circumstances surrounding the case, that the acts of the parties are consistent with an honest purpose, then it is not an inevitable consequence that the conveyance will hinder, delay or defraud creditors, and the court should find accordingly. Even if a transaction is, on its face, presumptively fraud-lent, nevertheless it is susceptible of explanation. As the Supreme Court has said: “Fraud is always a question of fact with reference to the intention of the grantor. Where there is no fraud, there is no infirmity in the deed. Every case depends upon its circumstances, and is to be carefully scrutinized. But the vital question is always the good faith of the transaction. There is no other test.”
The circumstances of this case indicate that appellee Vida Ruth Kelly was not the owner of the property in dispute, or of any part of it. At best, she had a claim which, in the hands of appellant, might have had some nuisance value as a cloud upon the title. The real owner was James Merrill Kinsell. The deed from his sister to him was of the nature of a quitclaim to clear her brother’s title. She testified that she never had any claim to the property; that she was not giving away anything that she had ever possessed; that the property belonged to her brother, as she well knew. The evidence was ample to support the findings of the court and we find no reason to question their correctness or the correctness of its conclusion that appellant failed to sustain the allegations of his complaint; that the conveyance made by Vida Ruth Kelly to her brother was not fraudulent or with the intent of preventing appellant from satisfying his judgment against her. We agree with the trial court that the acts of the parties to the conveyance are entirely consistent with an honest purpose, and that the conveyance was not in violation of the statute.
Affirmed.
D.C.Code (1940) § 12 — 401; D.C.Code (1924) § 1120: “Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands or rents and profits issuing from the same, or in goods or things in action, and every charge upon the same, and every bond or other evidence of debt given, or judgment or decree suffered, with the intent to hinder, delay, or defraud creditors or other persons having just claims or demands of their lawful suits, damages, or demands, shall he void as against the persons so hindered, delayed, or defrauded: Provided, That nothing herein shall he construed to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor: Provided further, That the question of fraudulent intent shall be deemed a question of fact and not of law.” [Italics supplied in part.]
Merillat v. Hensey, 32 App.D.C. 64, 72, affirmed 221 U.S. 333, 31 S.Ct. 575, 55 L.Ed. 758, 36 L.R.A.,N.S., 370, Ann.Cas.1912D, 497.
Barber v. Wilds, 33 App.D.C. 150, 155.
Merillat v. Hensey, 32 App.D.C. 64, 72, affirmed 221 U.S. 333, 31 S.Ct. 575, 55 L.Ed. 758, 36 L.R.A.,N.S., 370, Ann.Cas.1912D, 497; Barber v. Wilds, 33 App.D.C. 150, 158.
Lloyd v. Fulton, 91 U.S. 479, 485, 23 L.Ed. 363.
See Federal Rules of Civil Procedure, Rule 52, 28 U.S.C.A. following section 723c; Klimkiewicz v. Westminster Deposit & Trust Co., 74 App.D.C. 333, 122 F.2d 957, certiorari denied 315 U.S. 805, 62 S.Ct. 633, 86 L.Ed. 1204.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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".
AMERICAN TRAIN DISPATCHERS ASSOCIATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Soo Line Railroad Company, et al., Intervenor. AMERICAN TRAIN DISPATCHERS ASSOCIATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Union Pacific Railroad Company, et al., Intervenor.
Nos. 80-1376, 80-2508.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 23, 1981.
Decided Feb. 16, 1982.
Gordon P. MacDougall, Washington, D.C., for petitioner.
Timm L. Abendroth, Atty., I. C. C., of the bar of the Supreme Court of Wisconsin, Washington, D.C., pro hac vice by special leave of the Court with whom Richard A. Allen, Gen. Counsel, I. C. C., Henry F. Rush, Associate Gen. Counsel, I. C. C., John J. Powers, III and Frederic Freilicher, Attys., Dept, of Justice, Washington, D.C., were on the brief for respondents.
Byron D. Olsen with whom Christopher A. Mills was on the brief for intervenors, Soo Line Railroad Company et al. in 80-1376.
Mark A. Kalafut and W. Donald Boe, Jr., were on the brief for intervenors, Union Pacific Railroad Co. et al. in 80-2508.
Before WRIGHT, MacKINNON and ROBB, Circuit Judges.
Opinion PER CURIAM.
Opinion concurring in part and dissenting in part filed by Circuit Judge J. SKELLY WRIGHT.
PER CURIAM:
Petitioner American Train Dispatcher Association seeks to set aside two decisions of the ICC in which the Commission found that two modifications designating different parties to assume existing functions under long existing joint trackage agreements between railroads do not require Commission approval under 49 U.S.C. § 11343, formerly § 5(2) of the Interstate Commerce Act. We affirm the ruling by the Commission.
I
In the “Soo” case, American Train Dispatchers Association v. Chicago & N. W., 360 I.C.C. 457 (1979), the Commission held that the transfer of train dispatching responsibility over joint trackage from one participating carrier to another, both of whom were long-time parties to the joint trackage agreement at issue, is not a transaction requiring Commission approval under 49 U.S.C. § 11343. Similarly, in the “Milwaukee” case, American Train Dispatchers Association v. Union Pacific R. R., (decision served November 10, 1980), the Commission held that the transfer of supervisory, operational, and maintenance functions over a jointly-owned track from one railroad to another does not require Commission approval under the same statute (id.).
The applicable provisions of the relevant statute provide:
(a) The following transactions involving carriers providing transportation subject to the jurisdiction of the ICC ... may be carried out only with the approval and authorization of the Commission: . . .
(2) a purchase, lease, or contract to operate property of another carrier by any number of carriers; ... (6) acquisition by a rail carrier of trackage rights over, or joint ownership in or joint use of, a railroad line (and terminals incidental to it) owned or operated by another rail carrier.
49 U.S.C. § 11343. It is apparent from the above provisions that it was the intent of Congress that transactions between carriers for the acquisition of significant (primarily financial or management) operational control over another carrier should not be made without the prior authorization and approval of the ICC. This interpretation is supported by Allegheny Corporation v. Breswick & Co., 353 U.S. 151, 161, 77 S.Ct. 763, 769, 1 L.Ed.2d 726 (1957) interpreting § 5(2) of the ICC Act which, so far as here material, was reenacted as § 11343(a)(2) and (6) of the present law. In Breswick the Court remarked:
The crux of each inquiry to determine whether there has been an “acquisition of control” is the nature of the change in relations between the companies whose proposed transaction is before the Commission. Does the transaction accomplish a significant increase in the power of one over the other, for example, an increased voice in management or operation, or the ability to accomplish financial transactions or operational changes with greater legal ease? (emphasis supplied)
353 U.S. at 169, 77 S.Ct. at 773. In both the Soo and Milwaukee cases, the existing operating agreements, prior to amendment, stipulated (by trackage rights or joint trackage agreements, respectively) that both parties to each agreement could use the same railroad tracks. None of the carriers, that is, had exclusive right of usage over any of the lines in question.
In addition, the Soo agreement in 1963 stipulated that no changes or modifications in the terms and conditions of that agreement could ensue without prior ICC approval. Subsequently, when a material shift developed in the amount of rail traffic carried by the respective railroads who were parties to the joint trackage agreements, the railroads designated one of the other signatory carriers (the Soo and Milwaukee) to carry on the dispatching and maintenance functions. This also resulted in the shift of employees who had been performing the designated function from one railroad to the other.
II
Neither modification involved any transfer or acquisition of trackage rights, joint ownership, or joint use of a railroad line between the party carriers and, since the railroad assuming the dispatching function did not acquire any additional operating rights over the property covered by the joint trackage agreements, neither modification constituted the acquisition or control of property of another carrier under Breswick. The same personnel carried on the same function over the same track with no change in operating rights of any character. As the Board found:
While it is true that the dispatching of trains over joint trackage does involve some “control” of the property of other carriers, this “control” only extends to the order in which trains move over the joint trackage and is primarily a safety function. Such “control” of the movement of equipment is not the type of control as is contemplated by 49 U.S.C. § 11343(2).
(J.A. (S) L15). Thus, neither of these modifications in the agreements amounted to a transfer of significant control (financial, management or otherwise) over the property in question. Consequently, neither modification required ICC approval under § 11343(a)(2) or (6) within the intent of Congress as interpreted by the Supreme Court in Allegheny Corporation v. Breswick & Co., supra.
In the case of the Soo agreement, moreover, the triviality of the change clearly exceeded the modifications that the parties to the 1963 agreement contemplated would require Commission approval. The ICC has already come to this conclusion earlier in these proceedings. On November 7, 1979, Division 1 of the ICC reviewed petitioner’s claims here at issue and held that the modifications of the Soo agreement here under scrutiny were “ministerial,” not “material,” and therefore did not require approval by the ICC under the 1963 agreement:
[W]hether formal approval of the Commission ... [pursuant to the 1963 agreement] ... would actually be required to effect such changes in the terms would depend on whether such changes may have material impacts on carrier operations and services subject to the Interstate Commerce Act.. . .
Here the only modification to the previously authorized agreement is the carrier nominally designated to discharge the ministerial function of train dispatching. This function is inherent to any joint trackage operation. It will be continued to be carried out, as it has been carried out in the past, pursuant to continuance of joint trackage operations. Clearly such change should have no effect on carrier operations and services or on the relationships between the- parties otherwise prescribed under 49 U.S.C. § 11343. Accordingly this change does not require our approval.
(J.A. 158-59). (Emphasis added).
Following this decision by Division I, petitioner filed for further review by the full Commission on this and other points. On January 15, 1980, the ICC affirmed the interpretation of Division 1 in toto.
In so affirming, the ICC interpreted its prior order concerning the 1963 agreement as not requiring ICC approval of insubstantial modifications such as those here under consideration. Because the ICC’s construction of its own order is entitled to great weight, and because it is peculiarly qualified to interpret the effect of the modifications here in issue, we decline petitioner’s invitation to countermand the Commission’s interpretation. Any other decision at this point would unnecessarily embroil the ICC against its will in scrutiny of matters of the most incidental character.
Ill
With further respect to compliance with the 1963 agreement the ICC acknowledged that it was sufficient for the parties in the Soo case to merely record the modification by filing with the Commission, which they had done. Petitioner contends that there is no statutory authority for this “recording” procedure, alleging that the ICC fabricated the recording requirement to suit their needs because of a desire to refrain from ruling that approval of the amendments was required by statute. It is clear that the statute does not strictly require approval or recording of such amendments. Recording the modification by filing with the Commission, however, served to bring the minor change to the attention of the Commission and when the Commission took no action thereon (and have not to this date), waiver of any requirement for more formal approval can be presumed. The contrary argument is faulted as being overly literal and as ignoring the reasonable intent of the parties and the Commission in a matter that is not required by statute. Petitioner’s argument here is therefore irrelevant and there is no need to address the “recordation” issue further.
IV
It is next argued by petitioner that the amendments adversely affect employees of the transferor lines. This issue is plainly irrelevant as well to the consideration of any obligation the Commission has to approve the amendments. All that is presently at issue is whether under the statute the ICC must pass upon the amended agreements. In Railway Labor Executives’ Association v. United States, 151 F.Supp. 108, 114 (D.D.C.1957), the D.C. District Court held that the existence of employee injury cannot be a test for determining whether an agreement falls within the scope of § 5(2), (presently § 11343):
The test of a transaction under § 5(2) is not, as plaintiff contends, whether it has an adverse effect on railroad employees, but whether it involves a consolidation or acquisition of control or management over two or more railroads in a common interest.
151 F.Supp. at 114. (emphasis added). This analysis is still eminently sound under § 11343.
V
Finally, petitioners contend that the ICC is required to protect the affected employees in the instant cases in accordance with the provisions of 49 U.S.C. § 11347. This argument misses the point of that section altogether. Section 11347 provides that if the ICC finds that § 11343 applies to a given agreement, then (and only then) is the obligation imposed on the ICC. Since § 11343 does not apply in the instant cases, the requirements of § 11347 are not applicable.
For reasons above stated the decision of the Intel-state Commerce Commission is affirmed.
Judgment accordingly.
. The ICC order approving the agreements provided:
That no changes or modifications in the terms and conditions of said agreements ... shall be effected without prior approval of the Commission.
(J.A. 104).
. That previously existing section 5(2)(a) of the ICC Act was intended to apply to major transactions involving changes in the control or management of railroads and significant portions thereof was indicated by section 5(2)(b). Subsection (b) required the Commission to notify the Governor of every state in which any part of any railroads involved in any subsection (a) transaction was located and provided for hearings for interested parties in the transaction. In the 1978 general revision of the Interstate Commerce Act (92 Stat. 1337, et seq.) the provisions of 5(2)(b) for notification and hearing were slightly modified and set forth in § 11334 (92 Stat. 1436). However, there was no essential change with respect to the character of the transactions involving carriers that continued to be subject to the approval and authorization of the Commission. See 49 U.S.C. § 11343(a). Subsections (2) and (6) § 11343(a) carried forward in haec verba the similar provisions of § 5(2)(a). Thus the Breswick interpretation that the section applies to “significant increasefs] in the power of one [railroad] over another, where there is an ‘increased voice in management or operation, or [in] the ability to accomplish financial transactions or operational changes with greater legal ease’,” continues to apply to transactions under § 11343(a)(2) & (6). None of these elements were present in the instant modifications.
. It is true that there is no statutory authority for the recording procedure, but neither does the statute require approval of the modification, as was decided in Breswick, supra. Thus, any approval that might be required by the joint trackage agreement would not necessarily require approval in accordance with the same notice and hearing procedures incident to a statutory approval under the then existing statute, i.e., § 5(2), supra. Thus, petitioner’s claim that the Commission ruled out the necessity under the agreement of formally approving the shift in dispatching duties in order to escape approval under the statute is a non sequitur. The form of approval that might be required by the statute and by the provision of the 1963 agreement did not necessarily involve the same procedures. And, even if some Commission approval were held to be required the current shift in dispatching duties under the agreement would not be equivalent to a statutory change, or require procedures equivalent to those under the present statute or § 5(2).
. 49 U.S.C. § 11347 provides:
§ 11347. Employee protective arrangements in transactions involving rail carriers
When a rail carrier is involved in a transaction for which approval is sought under sections 11344[*] and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 565 of title 45. Notwithstanding this subtitle, the arrangement may be made by the rail carrier and the authorized representative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission (or if an employee was employed for a lesser period of time by the carrier before the action became effective, for that lesser period). Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1439. * Section 11344 refers to applications under section 11343.
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_appel2_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
ILLINOIS CENTRAL RAILROAD COMPANY, Mutual Fire, Marine and Inland Insurance Company, and Jack Norman Creswell, etc., Plaintiffs-Appellants, v. James F. RILEY, Defendant-Appellee.
No. 17542.
United States Court of Appeals Sixth Circuit.
April 6, 1968.
James G. Wheeler, Paducah, Ky., James G. Apple, Wheeler, Marshall & Manchester, Paducah, Ky., on brief, for appellants.
Richard C. Roberts, Paducah, Ky., Andrew J. Russell, George R. Effinger, Paducah, Ky., Waller, Threlkeld & Whitlow, Paducah, Ky., on brief, for appellee.
Before COMBS, Circuit Judge, and McALLISTER and CECIL, Senior Circuit Judges.
COMBS, Circuit Judge.
The defendant Riley’s truck, loaded with crushed stone, went out of control as it descended a steep grade on the highway and collided with a bridge owned by the plaintiff railroad company. The truck plunged through the side of the bridge and fell forty feet to the railroad tracks below, landing on two railroad hopper cars. The truck caught fire and then the bridge caught fire. Later, the bridge collapsed and fell on the truck. The truck driver was killed.
In a suit for damages to its property the railroad company and its insurance carriers relied on the doctrine of res ipsa loquitur; Riley defended on the theory of sudden failure of the truck’s brakes. A jury found for the defendant. On this appeal the plaintiffs contend that the instructions to the jury were erroneous and that other errors occurred during the trial which require reversal. We are of the opinion the judgment should be affirmed.
The District Court gave the usual res ipsa loquitur instruction, as requested by plaintiffs, and then instructed that, if the proximate cause of the accident was the sudden failure of the truck’s brakes, the jury should find for defendant. Plaintiffs’ criticism of the instructions is that no duty was placed on the defendant in regard to maintenance and inspection of the brakes. Defendant counters with the argument that there was no evidence of lack of inspection and that, in any event, lack of inspection is unimportant in light of the evidence that the cause of the brake failure could not have been detected by inspection.
Defendant introduced testimony that the failure of the brakes was caused by a “vibration” break in the hydraulic brake line; that when this occurred the fluid in the line was lost and the brakes became useless. A section of the brake line, broken in one place, was introduced as an exhibit and examined by the jury. The crucial question was whether the break in the line occurred prior to the accident, and thus caused the brakes to fail, or whether it was caused by the force of the accident. The brake line lay inside a U-shaped channel steel beam. According to defendant’s witnesses who examined the vehicle after the accident, the line was still attached to the truck’s frame on both sides of the break. These witnesses testified that a break in the line caused by natural vibration from operation of the truck would have a different appearance from a break caused by an external blow or by stretching. Plaintiffs’ witnesses testified that in their opinion the break in the line was caused by the impact of the collision. The issue was thus developed and was properly submitted to the jury. We do not agree with plaintiffs that they were entitled to a directed verdict.
On the issue of inspection it was shown that the defendant had assisted the driver of the truck and another employee in overhauling the brakes on the truck two and one-half months before the accident. The defendant himself had adjusted the brakes three days before the accident. The driver of the truck was allowed thirty minutes each morning for inspection of his vehicle prior to hauling his first load, but no one knew whether he had actually made the inspection on the morning of the accident. The accident occurred about 10:80 A. M., and the driver had already made six round-trips from the quarry to the construction job where the stone was being used. He ordinarily made fifteen to twenty trips during a working day and was required to use his brakes frequently on each trip. Plaintiffs introduced proof that the entire braking system on a truck of this type should be inspected at least once a month. Defendant introduced proof, which was not contradicted, that there was no way to tell by inspection when a vibration break in a hydraulic brake line would occur.
Plaintiffs cite several Kentucky cases which hold that ordinarily, when sudden failure of the brakes is relied upon as a defense, the burden of showing proper maintenance and inspection is placed upon the defendant. We do not consider those cases to be applicable here. An instruction is not required on an issue that is not developed in the proof and pleadings. International Harvester Company v. Huber, Ky., 359 S.W.2d 616 (1962). Since it was shown by the defendant, without dispute, that a vibration break in a line similar to this one cannot be prevented or anticipated by inspection we conclude that an instruction on duty to inspect was not necessary.
Plaintiffs also contend that an instruction should have been given in regard to the hand brake on the truck. A Kentucky statute requires that hand brakes on a motor vehicle shall be adequate to stop it within a distance of fifty-five feet when travelling twenty miles per hour upon a dry pavement where the grade does not exceed one per cent. Riley testified that the hand brake on this truck was not designed to stop it; that it was designed only to hold the vehicle when it was parked. The only- estimate of the speed of the truck immediately prior to the accident was thirty to fifty miles per hour. The grade of the highway averaged about five per cent. It is obvious that this heavily loaded' truck, travelling downhill at thirty to fifty miles per hour, could not have been stopped or appreciably slowed by application of the statutorily required hand brake. It was not necessary, therefore, to give an instruction on this issue.
Plaintiffs assign as error the action of the court in permitting the introduction of a section of the brake line as an exhibit. They cite no authority for their position and we know of none which could be cited. The groundwork having been laid for introduction of this exhibit, it was clearly admissible.
The accident was investigated by a Kentucky State Trooper who arrived at the scene a few minutes after the collision. Plaintiffs’ counsel asked him to state his opinion whether it would have been possible “for a tube of brake fluid to remain intact and unbroken on the truck after what it had gone through as you discovered it.” The court sustained an objection to this question and it was avowed that the answer would have been, “No.” Plaintiffs argue that it was error to exclude the answer. No attempt was made to show that the trooper had any special knowledge in this field and he testified that he examined the truck only “as close as possible” and did not examine the metal brake line. We think the trooper’s answer was properly excluded. Ordner v. Reimold, 278 F.2d 532 (10th Cir. 1960); Cline v. Wenger, Ky., 263 S.W.2d 91 (1953).
After the transcript of evidence was prepared it was discovered that the court reporter had failed to record the court’s instructions to the jury as given in open court. Plaintiffs thereupon filed motion for new trial under Rule 60(b), Federal Rules of Civil Procedure, which provides that the court may, upon such terms as are just, relieve a party of the consequences of mistakes or inadvertence. When the problem of the missing instructions was brought to the court’s attention, he proceeded to reconstruct the instructions as authorized by Rule 75(d), F.R.C.P. Plaintiffs’ counsel participated in these proceedings and the instructions as reconstructed were incorporated into an agreed order which was signed by counsel for the parties. The parties agreed that this order could be included in the record for the purpose of appeal.
Plaintiffs do not contend that the instructions were not properly reconstructed and do not point out how they have been prejudiced by the omission of the original instructions from the court reporter’s transcript. They could have proceeded under Rule 75(c), F.R.C.P., to prepare a statement of their own from the best available means which could have been served on defendant. They did not take this course but elected instead to rely on the agreed order by which the court did this for them. They have no cause for complaint on this score.
In conclusion, we are of the opinion that the question whether this accident was caused by negligence was one for the jury. We are also of the opinion that no errors were committed during the trial which adversely affected the substantial rights of the plaintiffs.
The judgment is affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_casesource
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
UNITED STATES v. BISHOP
No. 71-1698.
Argued January 16, 1973
Decided May 29, 1973
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting statement, post, p. 362.
Richard B. Stone argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Crampton, Deputy Solicitor General Lacovara, Keith A. Jones, and John P. Burke.
J. Richard Johnston argued the cause for respondent. With him on the brief were Neil F. Horton and Robert H. Solomon.
MR. Justice Blackmun
delivered the opinion of the Court.
Chapter 75, subchapter A, of the Internal Revenue Code of 1954, as amended, 26 U. S. C. §§ 7201-7241, is concerned with tax crimes. Sections 7201-7207, inclusive, which in the aggregate relate to attempts to evade or defeat tax, to failures to act, and to fraud, all include the word “willfully” in their respective contexts. Specifically, § 7206 is a felony statute and reads:
Ҥ 7206. Fraud and false statements.
“Any person who—
“(1) Declaration under penalties of perjury. “Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter....
“shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.”
Section 7207 is a misdemeanor statute and reads:
“7207. Fraudulent returns, statements, or other documents.
“Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.”
This case presents the issue of the meaning of the critical word “willfully” as it is employed in these two successive statutes. Is its meaning the same in each, or is the willfulness specified by the misdemeanor statute, § 7207, of somewhat less degree than the felony willfulness specified by § 7206?
I
Respondent, Cecil J. Bishop, was convicted by a jury on all three counts of an indictment charging him with felony violations of § 7206 (1) with respect to his federal income tax returns for the calendar years 1963, 1964, and 1965. The Court of Appeals, holding that a lesser-included-offense instruction directed to the misdemeanor statute, § 7207, was improperly refused by the trial judge, reversed the judgment of the District Court and remanded the case for a new trial. 455 F. 2d 612 (CA9 1972). Since the meaning of “willfully,” as used in the tax crime statutes, has divided the circuits, we granted certiorari. 409 U. S. 841 (1972).
We conclude that it was proper and correct for the District Court to refuse the lesser-included-offense instruction. In our view, the word “willfully” has the same meaning in both statutes. Consequently, we reverse and remand so that the Court of Appeals may now proceed to consider the additional issues that court found it unnecessary to reach.
II
Mr. Bishop is a lawyer who has practiced his profession in Sacramento, California, since 1951. During that period, he owned an interest in a walnut ranch he and his father operated. In 1960 his secretary, Louise, married his father. The father died, and thereafter respondent’s stepmother managed the ranch.
Respondent periodically sent checks to Louise. These were used to run the ranch, to pay principal on loans, and to make improvements.
Louise maintained a record of ranch expenditures and submitted an itemized list of these disbursements to respondent at the end of each calendar year. In his 1963 return respondent asserted as business deductions all amounts paid to Louise and, in addition, all the expenses Louise listed. This necessarily resulted in a double deduction for all ranch expenditures in 1963. Moreover, some of these expenditures were for repayment of loans and for other personal items that did not qualify as income tax deductions. In his 1964 and 1965 returns respondent similarly included nondeductible amounts among the ranch figures that were deducted.
The aggregate amount of improper deductions taken by respondent for the three taxable years exceeded $45,000. He enjoyed aggregate gross income for those years of about $70,000.
The incorrectness of the returns as filed for the three years was not disputed at trial. Transcript of Trial 869-872, 1148. Neither is it disputed here. Brief for Respondent 4.
Ill
Section 7206 (1), the felony statute, is violated when one “[wjillfully makes and subscribes any return,” under penalties of perjury, “which he does not believe to be true and correct as to every material matter.” Respondent based his defense at trial on the ground that he was not aware of the double deductions asserted in 1963 or of the improper deductions taken in the three taxable years. He claimed that his law office secretary prepared the return schedules from his records and from the information furnished by Louise; he merely failed to check the returns for accuracy.
Respondent requested lesser-included-offense instructions based on the misdemeanor statute, § 7207. This tax misdemeanor is committed by one “who willfully delivers or discloses” to the Internal Revenue Service any return or document “known by him to be fraudulent or to be false as to any material matter.” Respondent argued that the word “willfully” in the misdemeanor statute should be construed to require less scienter than the same word in the felony statute. App. 28. With the state of respondent's guilty knowledge in dispute, his proposed instructions would have allowed the jury to choose between a misdemeanor based on caprice or careless disregard and a felony requiring evil purpose. The trial judge declined to give the requested instructions and, instead, gave an instruction only on the felony, requiring a finding by the jury that the defendant intended “with evil motive or bad purpose either to disobey or to disregard the law.” App. 24.
After the guilty verdict on all counts was returned, respondent was sentenced to two years’ imprisonment on each count, the sentences to run concurrently. The court, however, suspended all but 90 days of each sentence and placed respondent on probation for five years on condition that he pay a fine of $5,000. App. 31.
IV
The Court of Appeals relied upon and followed, 455 F. 2d, at 614, a series of its own cases, particularly Abdul v. United States, 254 F. 2d 292 (1958), enunciating the proposition that the word “willfully” has a meaning in tax felony statutes that is more stringent than its meaning in tax misdemeanor statutes. Our examination of these Ninth Circuit precedents in the light of this Court’s decisions leads us to conclude that the Court of Appeals’ opinion cannot be sustained by this asserted distinction between § 7206 (1) and § 7207.
A. The Ninth Circuit rule appears to have been evolved from language in this Court’s opinion in Spies v. United States, 317 U. S. 492 (1943). In Spies the defendant requested an instruction to the effect that an affirmative act was necessary to constitute a willful attempt to evade or defeat a tax, within the meaning of § 145 (b) of the Revenue Act of 1936, 49 Stat. 1703. The trial court refused the request. The Second Circuit affirmed. This Court reversed. We were concerned in Spies with a felony statute, § 145 (b), applying to one “who willfully attempts in any manner to evade or defeat any tax,” and with a companion misdemeanor statute, § 145 (a), applying to one who “willfully fails to pay such tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations.” These statutes were the predecessors of the current §§ 7201 and 7203, respectively, of the 1954 Code. In distinguishing between the two offenses, the Court said:
“The difference between willful failure to pay a tax when due, which is made a misdemeanor, and willful attempt to defeat and evade one, which is made a felony, is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United States v. Mur-dock, 290 U. S. 389. It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness. But in view of our traditional aversion to imprisonment for debt, we would not without the clearest manifestation of Congressional intent assume that mere knowing and intentional default in payment of a tax, where there had been no willful failure to disclose the liability, is intended to constitute a criminal offense of any degree. We would expect willfulness in such a case to include some element of evil motive and want of justification in view of all the financial circumstances of the taxpayer.
“Had § 145 (a) not included willful failure to pay a tax, it would have defined as misdemeanors generally a failure to observe statutory duties to make timely returns, keep records, or supply information— duties imposed to facilitate administration of the Act even if, because of insufficient net income, there were no duty to pay a tax. It would then be a permissible and perhaps an appropriate construction of § 145 (b) that it made felonies of the same willful omissions when there was the added element of duty to pay a tax. The definition of such nonpayment as a misdemeanor, we think, argues strongly against such an interpretation.” 317 U. S., at 497-498.
In Abdul the court considered an appeal by a taxpayer convicted of tax misdemeanors (§ 2707 (b) of the 1939 Code and § 7203 of the 1954 Code) based on failure to file but acquitted of tax felonies (§ 2707 (c) of the 1939 Code and § 7202 of the 1954 Code) based on failure to account for and pay withholding taxes. The defense was inability to pay. The trial judge instructed the jury that the term “wilful” in the misdemeanor counts meant, among other things, “capriciously or with a careless disregard whether one has the right so to act,” whereas the same word in the felony counts meant “with knowledge of one’s obligation to pay the taxes due and with intent to defraud the Government of that tax by any affirmative conduct.” 254 F. 2d, at 294. Relying on Spies, the Court of Appeals approved these instructions and concluded that
“the word ‘wilful’ as used in the misdemeanor statute means something less when applied to a failure to make a return than as applied to a felony non-payment of a tax. This being true, then the words used in the instruction defining ‘wilful’ as relates to a misdemeanor adequately and clearly point up that difference.” Ibid.
Because of an error in the cross-examination of Abdul, his conviction was reversed. On retrial, he was again convicted. He appealed, and the judgment was affirmed. Abdul v. United States, 278 F. 2d 234 (CA9 1960). When Abdul sought certiorari, the Solicitor General conceded that the sentence under one of the counts could not stand and undertook to say that the Government would present to the District Court a motion for correction of the sentence. Certiorari, accordingly, was denied. Two Justices would have granted the writ to review the correctness of the charge “regarding the requirement of willfulness.” 364 U. S. 832 (1960).
In the present case the Court of Appeals continued this Abdul distinction between willfulness in tax misdemeanor charges and willfulness in tax felony charges. Section 7207, it was said, requires only a showing of “unreasonable, capricious, or careless disregard for the truth or falsity of income tax returns filed,” whereas § 7206 (1) “requires proof of an evil motive and bad faith.” 455 F. 2d, at 615. The level of willfulness, thus, would create a disputed factual element that made appropriate a lesser-included-offense instruction.
B. The decisions of this Court do not support the holding in Abdul, and implicitly they reject the approach taken by the Court of Appeals. In Spies, the Court speculated, 317 U. S., at 495-498, that Congress could have distinguished between the regulatory aspects of the tax system, which call for compliance regardless of financial status, and the revenue-collecting aspects, which may place demands on a taxpayer he cannot meet. Since the antecedent of § 7203 (as does that section itself today) punished both failure to file and failure to pay as misdemeanors, the Court concluded that Congress had not drawn the line between felonies and misdemeanors on the basis of distinctions between the system’s regulatory aspects and its revenue-collecting aspects. The reliance in Abdul on that hypothetical statutory scheme, discussed by this Court in Spies but found not in line with what Congress had actually done, was misplaced. Utilizing the unsupported Abdul distinction as a foundation, the Court of Appeals constructed the further general distinction between tax felonies and tax misdemeanors, a distinction also inconsistent with prior decisions of this Court.
In Berra v. United States, 351 U. S. 131 (1956), a defendant was convicted of violating the antecedent of § 7201, namely, § 145 (b) of the 1939 Code, a felony statute identical, for present purposes, with the section of the same number in the Revenue Act of 1936 at issue in Spies. The defendant claimed that he was entitled to a lesser-included-offense instruction based on § 3616 (a) of the 1939 Code, the antecedent of § 7207. The Court rejected this contention, concluding that the two sections of the 1939 Code then “covered precisely the same ground.” 351 U. S., at 134. Implicit in this was the conclusion that the level of intent required for tax misdemeanors was not automatically lower than the level of intent required for tax felonies.
Although the misdemeanor statute, §3616 (a), proffered by the defendant in Berra did not contain the word “willfully,” the Berra facts were presented to the Court again in Sansone v. United States, 380 U. S. 343 (1965), when the misdemeanor statutes there in issue, §§ 7207 and 7203 of the 1954 Code, both contained the word “willfully.” In Sansone the Court rejected the argument that a set of facts could exist that would satisfy the willfulness element in the § 7207 misdemeanor but not in the § 7201 felony:
“Given petitioner's material misstatement which resulted in a tax deficiency, if, as the jury obviously found, petitioner's act was willful in the sense that he knew that he should have reported more income than he did for the year 1957, he was guilty of violating both §§ 7201 and 7207. If his action was not willful, he was guilty of violating neither.” 380 U. S., at 353.
The same analysis v/as applied to the requested lesser-included-offense instruction for § 7203. Id., at 352. The clear implication of the decision in Sansone is that the word “willfully” possesses the same meaning in §§ 7201, 7203, and 7207. Sansone thus foreclosed the argument that the word “willfully” was to be given one meaning in the tax felony statutes and another meaning in the tax misdemeanor statutes.
The thesis relied upon by the Court of Appeals, therefore, was incorrect.
y
It would be possible, of course, that the word “willfully” was intended by Congress to have a meaning in § 7206 (1) different from its meaning in § 7207, and we turn now to that possibility.
We continue to recognize that context is important in the quest for the word’s meaning. See United States v. Murdock, 290 U. S. 389, 394-395 (1933). Here, as in Spies, the “legislative history of the section [s] contains nothing helpful on the question here at issue, and we must find the answer from the [sections themselves] and i[their] context in the revenue laws.” 317 U. S., at 495. We consider first, then, the sections themselves.
A. Respondent argues that both §§ 7206 (1) and 7207 apply to a fraudulent “return” and cover the same ground if the word “willfully” has the same meaning in both sections. Since “it would be unusual and we would not readily assume that Congress by the felony... meant no more than the same derelictions it had just defined... as a misdemeanor,” 317 U. S., at 497, respondent concludes that Congress must have intended to require a more willful violation for the felony than for the misdemeanor.
The critical difficulty for respondent is that the two sections have substantially different express terms. The most obvious difference is that § 7206 (1) applies only if the document “contains or is verified by a written declaration that it is made under the penalties of perjury.” No equivalent requirement is present in § 7207. Respondent recognizes this but then relies on the presence of perjury declarations on all federal income tax returns, a fact that effectively equalizes the sections where a federal tax return is at issue. See 26 U. S. C. § 6065 (a).
This approach, however, is not persuasive for two reasons. First, the Secretary or his delegate has the power under § 6065 (a) to provide that no perjury declaration is required. If he does so provide, then § 7207 immediately becomes operative in the area theretofore covered by § 7206 (1). Second, the term “return” is not necessarily limited to a federal income tax return. A state or other nonfederal return could be intended and might not contain a perjury warning. If this type of return were submitted in support of a federal return, or in the course of a tax audit, § 7207 could apply even if § 7206 (1) could not.
There are other distinctions. The felony applies to a document that a taxpayer “[w]illfully makes and subscribes... and which he does not believe to be true and correct as to every material matter,” whereas the misdemeanor applies to a document that a taxpayer “willfully delivers or discloses to the Secretary or his delegate... known by him... to be false as to any material matter.” In the felony, then, the taxpayer must verify the return or document in writing, and he is liable if he does not affirmatively believe that the material statements are true. For the misdemeanor, however, a document prepared by another could give rise to liability on the part of the taxpayer if he delivered or disclosed it to the Service; additional protection is given to the taxpayer in this situation because the document must be known by him to be fraudulent or to be false.
These differences in the respective applications of §§ 7206 (1) and 7207 provide solid evidence that Congress distinguished the statutes in ways that do not turn on the meaning of the word “willfully.” Judge Hastie, in analyzing this Court's holding in Spies, appropriately described this distinction as follows:
“However, this distinction is found in the additional misconduct which is essential to the violation of the felony statute... and not in the quality of willfulness which characterizes the wrongdoing.” United States v. Vitiello, 363 F. 2d 240, 243 (CA3 1966).
Thus the word “willfully” may have a uniform meaning in the several statutes without rendering any one of them surplusage. We next turn to context.
B. The hierarchy of tax offenses set forth in §§ 7201-7207, inclusive, utilizes the mental state of the offender as a guide in establishing the penalty. Section 7201, relating to attempts to evade or defeat tax, has been described and recognized by the Court as the “climax of this variety of sanctions” and as the “capstone of a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency.” Spies, 317 U. S., at 497; Sansone, 380 U. S., at 350-351. The actor's mental state is described both by the requirement that acts be done “willfully” and by the designation of certain express elements of the offenses. In § 7201, for example, the Court has held that, by requiring an attempt to evade, “Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors.” Spies, 317 U. S., at 499. Similarly, in § 7207, the Government must show that the document was known by the taxpayer to be fraudulent or to be false as to a material matter.
All these offenses, except two subsections of § 7206, viz., subsections (3) and (4), require that acts be done “willfully.” Although the described states of mind might be included in the normal meaning of the word “willfully,” the presence of both an express designation and the simultaneous requirement that a violation be committed “willfully” is strong evidence that Congress used the word “willfully” to describe a constant rather than a variable in the tax penalty formula.
The Court, in fact, has recognized that the word “willfully” in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as “bad faith or evil intent,” Murdock, 290 U. S., at 398, or “evil motive and want of justification in view of all the financial circumstances of the taxpayer,” Spies, 317 U. S., at 498, or knowledge that the taxpayer “should have reported more income than he did.” Sansone, 380 U. S., at 353. See James v. United States, 366 U. S. 213, 221 (1961); McCarthy v. United States, 394 U. S. 459, 471 (1969).
This longstanding interpretation of the purpose of the recurring word “willfully” promotes coherence in the group of tax crimes. In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. The Court has said, “It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.” Spies, 317 U. S., at 496. Degrees of negligence give rise in the tax system to civil penalties. The requirement of an offense committed “willfully” is not met, therefore, if a taxpayer has relied in good faith on a prior decision of this Court. James v. United States, 366 U. S., at 221-222. Cf. Lambert v. California, 355 U. S. 225 (1957). The Court’s consistent interpretation of the word “willfully” to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.
Until Congress speaks otherwise, we therefore shall continue to require, in both tax felonies and tax misdemeanors that must be done “willfully,” the bad purpose or evil motive described in Murdock, supra. We hold, consequently, that the word “willfully” has the same meaning in § 7207 that it has in § 7206 (1). Since the only issue in dispute in this case centered on willfulness, it follows that a conviction of the misdemeanor would clearly support a conviction for the felony. Under these circumstances a lesser-included-offense instruction was not required or proper, for in the federal system it is not the function of the jury to set the penalty. Berra v. United States, 351 U. S., at 134r-135.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
Mr. Justice Douglas would affirm the judgment of the Court of Appeals for the Ninth Circuit on the opinion written for that court by Judge Powell. 455 F. 2d 612.
Title 18 U. S. C. § 1 defines felony and misdemeanor:
Ҥ 1. Offenses classified.
“Notwithstanding any Act of Congress to the contrary:
“(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
“(2) Any other offense is a misdemeanor.”
Compare United States v. Vitiello, 363 F. 2d 240, 243 (CA3 1966) (§§ 7201 and 7203), and Haner v. United States, 315 F. 2d 792, 794 (CA5 1963) (§ 7203), where the Ninth Circuit analysis was rejected, with United States v. Fahey, 411 F. 2d 1213 (CA9), cert. denied, 396 U. S. 957 (1969) (§ 7203); Martin v. United States, 317 F. 2d 753 (CA9 1963) (§ 7203); Abdul v. United States, 254 F. 2d 292 (CA9 1958) (§§ 2707 (b) and (c) of the 1939 Code and §§ 7202 and 7203 of the 1954 Code). See also Janko v. United States, 281
Question: What is the court whose decision the Supreme Court reviewed?
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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
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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
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064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_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.
UNITED STATES of America, Plaintiff-Appellee, v. Oliver WILSON, Defendant-Appellant.
No. 80-5149.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 19, 1980.
Decided Jan. 22, 1981.
Charles S. Brown, Detroit, Mich, (court-appointed), for defendant-appellant.
James K. Robinson, U. S. Atty., Harold Z. Gurewitz, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.
Before BROWN, KENNEDY and MARTIN, Circuit Judges.
PER CURIAM.
Charles Oliver Wilson appeals his conviction of eleven counts of violating 18 U.S.C. §§ 2 and 1341, and seven counts of violating 18 U.S.C. §§ 2 and 1001. Appellant was the principal operator and president of C. Wilson Laboratory Associates, Inc., which provided testing service for Detroit area doctors. It also referred, pursuant to an agreement, testing requests for those patients insured under the federally funded medicaid program to Advance Laboratory of Dearborn, Michigan. For each referred request, Advance paid the Wilson Laboratory amounts up to $28.00.
During the time period relevant to the indictment, the Michigan medicaid program paid laboratories which performed eligible testing services by means of Michigan Treasurer’s Warrants which were mailed to the laboratories. It was established at trial that the Wilson Laboratory personnel, at appellant’s direction, created fictitious test requests. On a daily basis, they referred to Advance Laboratory test requests when no tests had been ordered by the physician, or requests for more comprehensive testing than that ordered. Advance copied the information from the requisition forms onto the billing forms which it submitted to the state, which in turn mailed payments to Advance.
Appellant contends that the mailings by the state agency were not sufficiently related to his scheme of supplying Advance with fraudulent claims information to sustain a conviction under the mail fraud statute, 18 U.S.C. § 1341. He seeks support from United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). That case involved the § 1341 conviction of a man who obtained goods and services from motels by using a stolen credit card. The Supreme Court held that the mailings of the invoices by the motel operators to the bank which issued the credit card were insufficiently related to the defendant’s scheme to bring his conduct within the statute. The Court observed that “Respondent’s scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way upon which of his victims [the motel operator, the bank, or the credit card holder] ultimately bore the loss.” 414 U.S. at 402, 94 S.Ct. at 649 (footnote omitted).
We agree with the government’s argument that Maze is distinguishable. Appellant’s scheme to defraud had not come to fruition prior to the mailings of the payments to Advance. The mailings were an integral part of an ongoing scheme, and essential to its success. See United States v. Street, 529 F.2d 226 (6th Cir. 1976); United States v. Huber, 603 F.2d 387, 400 (2nd Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). That the Advance employees charged in connection with the scheme have been acquitted is irrelevant.
Appellant’s second contention challenges his conviction of violating 18 U.S.C. § 1001. He asserts that there was insufficient proof that the false requisition forms related to a “matter within the jurisdiction of any department or agency of the United States.” Appellant is raising this issue for the first time on appeal. The trial judge took judicial notice of this element of the offense, and instructed the jury accordingly. Having failed to object to this aspect of the charge at trial, appellant is precluded by Rule 30 of the Federal Rules of Criminal Procedure from arguing on appeal that it was error.
The judgment of the District Court, 490 F.Supp. 713, is affirmed.
. The applicable parts of the mail fraud statute provide as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do ... knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both.
A person “causes” the mails to be used when he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended .... ” Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). There is abundant evidence to support the conclusion that appellant “caused” the use of the mails by the state agency.
. Section 1001 provides:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
TAFT BROADCASTING COMPANY, Appellant, v. RADIO BROADCAST TECHNICIANS LOCAL UNION NO. 253 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellee.
No. 18965.
United States Court of Appeals Fifth Circuit.
Feb. 5, 1962.
Robert McD. Smith, Birmingham, Ala., J. Mack Swigert, Cincinatti, Ohio (Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel), for appellant.
J. R. Goldthwaite, Jr., Adair, Goldthwaite & Stanford, Atlanta, Ga., for appellee.
Before RIVES, CAMERON and BROWN, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
The District Court held that the Employer was obligated to arbitrate a controversy over whether a radio station should be operated by remote control. The Employer appeals. We affirm.
The Employer operates a TV and two radio stations in Birmingham, Alabama. One radio station is an AM broadcast; the other an FM. Each radio station has a separate transmitter at separate locations. In October 1960 the Employer, without consulting the Union — representing the Technician Operators — determined to change the operation of its AM station. In the place of the direct control by a Technician at the transmitter, equipment was installed to permit remote control. The Union demanded that the Employer not make such change unilaterally and requested that the Employer discuss this. The Employer declined and persisted in its plan to install the remote control equipment. The Union then demanded arbitration.
The Employer, insisting that the controversy was not subject to arbitration, declined. It chooses to put the controversy in terms of whether the parties agreed to arbitrate the question whether the AM “ * * * transmitter * * will be controlled remotely.” The Union puts the issues in these terms: “The question for arbitration is whether the collective bargaining contract * * * prohibits [the Employer] from unilaterally changing work practices of the Technicians so that the AM transmitter is controlled remotely * * * thus * * adversely affecting * * * working conditions of the Technicians * * *.”
Casting it in the terms it does, the Employer insists that remote versus direct control of a transmitter is a technical question exclusively within the domain of management judgment and decision. If this is arbitrable, so therefore, it urges, would be every other mechanical or electronic matter connected with operations. This would mean that the Employer would be completely divested of those characteristic rights and powers which are essential to orderly, efficient and successful management of a business. These serious consequences demonstrate, so the Employer argues, that before the Employer may be compelled to turn over such questions to an outside arbiter, there must be clear language in the contract for such submission. On this the Employer asserts, in perhaps more legalistic terms, its basic contention that this dispute is of a kind which is excluded from the scope of the contractual arbitration agreement. And, stated negatively, if the dispute is not expressly excluded, then it certainly was not “included.” How does this match against the arbitration agreement? It uses broad and sweeping language to provide that “All complaints, disputes or questions as to the interpretation, application, or performance of the terms of this” contract shall be subject to arbitration.
Of course the question whether the parties promised to arbitrate a particular question is one for a Court. The trilogy of opinions did not undertake to alter that principle. But those decisions are of extreme importance as we have since many times acknowledged. Lodge No. 12, District No. 37, International Ass’n of Machinists v. Cameron Iron Works, Inc., 5 Cir., 1961, 292 F.2d 112; International Ass’n of Machinists v. Hayes Corp., 5 Cir., 1961, 296 F.2d 238 [Nos. 18946 & 18947, Dec. 8, 1961, 296 F.2d 238]; Mississippi Valley Electric Co. v. Local 130, International Brotherhood of Electrical Workers, 5 Cir., 1960, 278 F.2d 764, modified, 285 F.2d 229, as a result of the Supreme Court decisions. Two principles are emphasized. First, the purpose to exclude a particular type of dispute from the arbitration promise must be clearly spelled out. And second, courts must overcome the temptation of passing on the intrinsic merits of the controversy under the guise of determining whether the dispute is within the promise to arbitrate.
But those principles do not dispense with the necessity that the controversy be one apparently within the promise to arbitrate. The requirement has been stated in terms of the limited role of the court. The court “is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” 363 U.S. 564 at 568, 80 S.Ct. 1343, at 1346.
If we measure this in terms of the contentions being advanced by the Union, rather than in the prohibited framework of what we, as Judges, might conclude as a matter of legal contract construction, it is clear that the claim on its face rested on the contract. There was, thus, a dispute or question as to “the interpretation, application or performance” of the contract.
First, there was the immediate question of job security with which the Union, by its very existence, was immediately concerned. When the Employer first announced that remote control facilities were being installed, it advised the Union that the contemplated change would result in additional job duties for some employees and the elimination of the jobs of other employees and the likely termination of their services. At least one cited provision of the contract, § 16-A, dealt with the question of the termination of the employment of Technicians. It distinctively provided that “dismissal of Technicians by the Employer shall be a matter subject to” the arbitration machinery.
Next there were other specific clauses of the contract bearing upon the work of these transmitter Technicians. For example § 13-A and 13-C referred to performance of certain work functions at the AM transmitter thus indicating, the Union argues, that an “AM watch” would continue through the life of the agreement. More direct was § 13-D which recognized that remote control for the FM transmitter could be installed and this the Union asserts, demonstrates inferentially that remote control of AM could not be.
To this the Employer advances arguments which may well be legally correct — and may even prevail before the arbiter — that these substantive provisions of the contract are not subject to this interpretation. But this is now forbidden territory. For we have pointed out that the “merits of the controversy may not be looked to by a court for the purpose of declaring that a correct legal interpretation of the contract would not support the construction sought. This may not be done directly, nor may it be done under the guise of determining that the matter is outside the agreement to arbitrate. * * * ” Lodge No. 12, District No. 37, International Ass’n of Machinists v. Cameron Iron Works, Inc., 5 Cir., 1961, 292 F.2d 112 at 118.
The District Court was therefore correct in determining that the controversy was subject to arbitration and in entering the order to compel it to go forward.
Affirmed.
. Compare this with the terminology used in what was characterized as a standard arbitration clause in United Steelworkers v. American Manufacturing Co., 1960, 363 U.S. 564, at 565, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403, where it read:
The parties bound themselves to arbitrate “ * * * all disputes between the parties ‘as to the meaning, interpretation and application of the provisions of this agreement.’ ”
. United Steelworkers v. American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
. As a predicate for Union apprehension concerning the adverse impact on its members, this was not altered by the Court’s finding of fact that subsequent to installation of the remote control facilities, no Technician was dismissed or his services dispensed with.
. § 13-D provided: “Nothing in this agreement shall be interpreted to preelude the installation and operation of FM remote control equipment at the AM transmitter by the transmitter Technician normally on duty.”
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_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
COUNTY OF HALIFAX, VIRGINIA, acting By and Through the BOARD OF SUPERVISORS, its governing body, a Political Subdivision of the Commonwealth of Virginia, Halifax, Virginia; Synergics, Inc., a Maryland Corporation having its principal place of business in Annapolis, Maryland, Appellees, v. Kenneth LEVER, c/o Actaeon Corporation; Banister Development, Ltd., c/o Actaeon Corporation, Appellants.
No. 82-2012.
United States Court of Appeals, Fourth Circuit.
Argued June 6, 1983.
Decided Sept. 29, 1983.
Rehearing and Rehearing En Banc Denied Nov. 2, 1983.
Joseph M. Winston, Jr., Danville, Va. (Luis A. Abreu, Clement & Wheatley, Dan-ville, Va., on brief), for appellants.
Thomas J. Wood, William W. Bennett, Jr., South Boston, Va. (Slayton, Bennett & Rand, South Boston, Va., on brief), for appellees.
Before RUSSELL and WIDENER, Circuit Judges, and BRYAN, Senior Circuit Judge.
DONALD RUSSELL, Circuit Judge:
The plaintiffs/appellees, County of Halifax, Virginia, and Synergies, Inc. filed this action in district court against Kenneth Lever and Banister Development, Ltd., defendants/appellants, asserting diversity jurisdiction and seeking by way of relief only “a mandatory injunction ... against defendants requiring [the defendants] to withdraw and relinquish all their rights obtained under the permit dated July 7, 1981, for the Banister Dam, Halifax County, Virginia, United States of America, Federal Energy Regulatory Commission, Project No. 3610-000, effective immediately; and further, to restrain and enjoin defendants from applying or filing with the Federal Energy Regulatory Commission any other permits, licenses or exemption applications for the Banister Dam, Halifax, Virginia; .... ” The defendants moved to dismiss the action for lack of subject matter jurisdiction because the controversy was in effect one to invalidate a permit issued by the Federal Energy Regulatory Commission [FERC] under the Federal Power Act and to overturn the decision of FERC not to rescind that permit. Such a proceeding, they contend, was within the exclusive jurisdiction of the FERC. Assuming that the proceedings were within the exclusive jurisdiction of the FERC, the defendants argued in their motion that the plaintiffs had not exhausted their administrative remedies before said Commission under the Act by filing a petition for rehearing within thirty (30) days after the issuance of the challenged order of permit nor had they within the required time petitioned for review of the order of the Commission refusing to invalidate the temporary permit to an appropriate United States Court of Appeals which had the exclusive jurisdiction “to affirm, modify, or set aside” the Commission’s order of permit. The District Court denied the motion to dismiss. Its ground for such denial was that plaintiffs’ action was one in tort for fraud and deceit and as such did not arise under the Federal Power Act. It relied on the decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951), as authority for this ruling. The cause thereafter, with issues joined, proceeded to trial before the District Court and resulted in an order and decree “requiring Defendant to surrender his permit [to produce hydroelectric power at a dam on Banister River in Halifax County, Virginia] to FERC and [to] take no further action on said permit.” The defendants have appealed. We reverse.
The threshold question which must first be answered in this appeal is the jurisdiction or power of the District Court. The resolution of that issue depends on the inherent nature and character of plaintiffs’ action, an issue which requires some review of the record. The plaintiffs in their complaint have not sued in tort for damages sustained as a result of fraud and deceit; they sue in essence, to hold and set aside, by way of a mandatory injunction in the District Court, a temporary permit issued the defendants, after a properly noticed hearing, by the FERC under the Federal Power Act. That permit, which is the real subject of this action, was issued pursuant to an application filed by the defendants with the FERC for a temporary permit to develop a dam to generate hydroelectric energy at Banister Dam in Halifax County under Section 797(e), 16 U.S.C. of the Federal Power Act. The FERC gave notice of this filing to “any States or municipality likely to be interested in or affected by such application,” which included Halifax County. It also published “notice of such application once each week for four weeks in a daily or weekly newspaper published” in Halifax County where the lands affected by the project were located as required in § 797(f), 16 U.S.C. In addition, the notices as given stated specifically that “notices of intent to file competing applications had to be submitted to the Commission by April 6, 1981” and “that parties filing notices of intent had to submit [their] competing applications by June 5,1981.” The notice further stated that any “comments, protests, or petitions to intervene must be received on or before April 6, 1981.”
On March 19, 1981, the plaintiff Halifax County filed a notice of intent to file an application for a preliminary permit prior to the April 6 deadline under the provisions of the Commission’s regulation 18 CFR, § 4.33(f) and (c), 1980, but it thereafter submitted no competing application by June 5, 1981, or by any later date. On July 2, 1981, however, after time for filing either a competing application or other type of application had expired, Halifax County filed a notice of intent to file an application for exemption from licensing. While such notice of the County was pending, the Director, Office of Electric Power Regulation in the FERC, (“Director”) issued the preliminary permit to the defendants on July 7,1981. Thereafter he “rejected as late the Halifax notice of intent for exemption.” On July 16 and '22, 1981, the plaintiffs filed appeals from the orders of the Director. The FERC issued on August 17, 1981, a notice of intent to act on the appeals and suspended the effective date of the preliminary permit pending Commission action on the appeals. After receiving arguments from the parties, on October 8, 1981, the FERC issued its order denying the appeals of the plaintiffs. In its order it gave very definite reasons for such denial. The plaintiffs did not petition the Commission for rehearing but filed this action in the District Court seeking, in effect, the same relief they had sought of the Commission.
In its appeal as filed on July 22, 1981, Halifax County raised a number of claims of defects in the FERC proceedings. The first was directed at the scope and effect of its notice of intent to file a competing application as submitted to the FERC on March 19, 1981. According to plaintiff’s argument, as set forth in its statement of grounds of appeal, such notice was “intended to protect fully [the County’s] rights and options regarding the Banister Dam” and “was not intended to confine the [County’s] options to the filing of an application for a preliminary permit or to preclude the filing of an exemption application.” Moreover, on July 2, 1981 (which, incidentally, was almost three months after the final date for filing a notice of intent to file a competing application and a month after the notice of the Commission required that a competing application be filed), the County asserts that it “reaffirm[ed] its intent to file a competing exemption application,” but, without replying to such notice of intent the “FERC issued a preliminary permit” to the defendants.
The County, also, in its appeal invoked the authority of the Commission to “cancel a permit for other good cause shown, after notice and opportunity for hearing.” 18 C.F.R. § 4.83. It identified particularly as “good cause” for the cancellation that the defendants had “promised” the County that, its “permit application would be withdrawn if [it] was not the successful bidder on the Banister Dam,” that it was not the successful bidder but that the defendants had “refused to honor this commitment,” thereby “substantially jeopardizing] [the County’s] ability to allow the successful bidder to develop the Banister Dam.” It added that, unless granted a cancellation of defendants’ permit, the County “will be unable to work with its developer of preference and will be compelled to work with a developer whose prior dealings with [it] can only be characterized as being in bad faith.” The plaintiffs’ final ground for cancellation was that it had been misled by members of the Commission’s staff, with whom it had consulted, as to the scope and effect of its notice of intent to file a competing application.
From this review of the record, there can be no question about the nature and character of plaintiffs’ proceedings in the District Court. It is not an action to recover damages for fraud or deceit; the plaintiffs do not even ask for damages. What they are asking the District Court to do is to grant them by way of relief in this proceeding in the District Court, in a somewhat left-handed way, exactly what it sought and was denied by the Commission in the administrative proceeding before it to which proceeding the County had been a party. After having unsuccessfully invoked the jurisdiction of the Commission to obtain that relief, the County now argues that the power to revoke the temporary permit issued by the Commission did not exist in the Commission and that the District Court has the power to provide it with relief by way of an improvised invalidation of the temporary permit granted the defendants.
We are unable to follow the County’s reasoning. The plaintiffs have pursued the wrong road for the relief they seek. The Federal Power Act, “written in words of plain meaning,” has committed to the Commission the exclusive right to grant, cancel, or rescind permits for the construction or operation of dams or reservoirs “necessary or appropriate” “for the development ... of [electric] power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction” under the commerce clause. 16 U.S.C. § 797(e). In exercising that authority, the Commission is expressly empowered “to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate”, including “the form or forms of all statements, declarations, applications, and reports to be filed with the Commission, the information which they shall contain, and the time within which they shall be filed.” § 825h, 16 U.S.C. This authority clearly covers the grant of the relief the plaintiffs sought in the administrative proceedings before the Commission. The power to rescind or cancel an order or permit is not narrow or severely circumscribed but is open-ended and covers any “good cause” found by the Commission. 18 C.F.R. § 4.83. It is manifest, therefore, that there was jurisdiction in the Commission to cancel, rescind or revoke the temporary permit granted the defendants for fraud. And, as we have already observed, the County recognized this power and initially invoked in its appeal of July 22 the jurisdiction of the Commission to rescind the temporary permit issued to the defendants. In so acting it was adopting the proper avenue for the relief it sought.
When the Commission refused to rescind its permit, the proper remedy for the County, if it was dissatisfied with the decision, was to petition for a rehearing by the Commission as provided and mandated in the Act. If dissatisfied with the action of the Commission in denying rehearing, the exclusive jurisdiction to review a decision of the Commission, whether it was to rescind the grant of a temporary permit or not, was then vested in the appropriate Court of Appeals. There is no de novo jurisdiction in either the State or the District Court to review, reverse or invalidate the action of the Commission in ruling on such petition to rescind. That was expressly held in City of Tacoma v. Taxpayers, 357 U.S. 320, 335-36, 78 S.Ct. 1209, 1218-19, 2 L.Ed.2d 1345 (1958). In that case, the Court, speaking to § 8257 of the Federal Power Act, said:
“This statute (§ 8257, 16 U.S.C.) is written in simple words of plain meaning and leaves no room to doubt the congressional purpose and intent.... 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 .... ’ 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.”
This ruling has been strictly adhered to in subsequent decisions, involving both proceedings before the FERC and before other federal administrative agencies. See City of Rochester v. Bond, 603 F.2d 927, 935 (D.C.Cir.1979); Town of Springfield, Vt. v. McCarren, 549 F.Supp. 1134, 1155 (D.C.D. Vt.1982). The rationale for such adherence was fully explicated in Bond. There, the Court said (603 F.2d at 936):
“First, we disagree that the district court may exercise concurrent jurisdiction merely because a violation of NEPA is alleged. The allegation may be raised directly in the courts of appeals; and insofar as it may affect the lawfulness of a directly appealable order we think it must be. The numerous cases cited by appellants in which district courts exercised original jurisdiction over suits complaining of NEPA violations are not to the contrary.
“The rationale for statutory review is that coherence and economy are best served if all suits pertaining to designated agency decisions are segregated in particular courts. The choice of forum is, as we have said, for Congress and we cannot imagine that Congress intended the exclusivity vel non of statutory review to depend on the substantive infirmity alleged. The policy behind having a special review procedure in the first place similarly disfavors bifurcating jurisdiction over various substantive grounds between district court and the court of appeals. The likelihood of duplication and inconsistency would exist in either case.”
Such rule has been applied, even where it was alleged in the district court action that the action of the administrative agency represented violations of other federal statutes, or where the plaintiff was not a party to the administrative proceedings and had no notice of such proceedings. Moreover, the Act in this case specifically provides that “[n]o proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.” § 8257 (a), 16 U.S.C.
The plaintiffs argue that Montana-Dakota Co. v. Northwestern Pub. Serv. Co., supra, 341 U.S. 246, 71 S.Ct. 692, supports their right of action here. We do not so read that authority. The relief the plaintiffs sought in that case was similar to that requested by the plaintiffs here” It sought to invalidate an action of the Commission under the Federal Power Act by an independent action in the District Court asserting fraud and deceit and seeking damages, something the County does not ask for here. One substantial difference between that case and this is a difference which makes the retention of this case by the District Court more impermissible. The plaintiff in Montana-Dakota had not raised the issue of fraud before the Commission and had the claim dismissed; the County here, however, raised the plea before the Commission and had lost. The District Court in Montana- Dakota sustained the suit on the assumed ground that since the plaintiff’s claim, just as the claim of the plaintiffs in this case, was for fraud and deceit, the action was one within the de novo jurisdiction of the District Court and it granted relief to the plaintiff largely on the theory that the Commission could not give relief for fraud by way of an award of reparations or damages. That decision was appealed to the Supreme Court. The plaintiffs have quoted a number of isolated sentences from the opinion of the Supreme Court in that case which they claim supports their position. What they overlook, however, is the ultimate decision of the Supreme Court which found unequivocally that the plaintiff had not established a cause of action in the District Court. In reaching that conclusion, the Supreme Court assumed that the Commission did not have power to grant damages to the plaintiff. Nonetheless, it declared finally (341 U.S. at 254-55, 71 S.Ct. at 696-97):
“The fact that the Congress withheld from the Commission power to grant reparations does not require courts to entertain proceedings they cannot themselves decide in order indirectly to obtain Commission action which Congress did not allow to be taken directly. There is no indication in the Power Act that that was Congress’ intent.
“Under such circumstances, we conclude that, since the case involves only issues which a federal court cannot decide and can only refer to a body which also would have no independent jurisdiction to decide, it must decline the case forthrightly rather than resort to such improvisation.”
That decision fits this case. By no form of improvisation could the District Court in this action in effect invalidate or rescind action by the Commission in a matter which Congress has committed to its exclusive jurisdiction. Yet that is precisely what the District Court has attempted to do in its indirect way by a mandatory injunction. In our opinion, it should have refused, just as the Supreme Court ruled the District Court should have done in Montana-Dakota, to entertain the action despite the claim of fraud and deceit.
It follows that the County’s exclusive remedy in this matter was by a petition for review with the appropriate Court of Appeals and not by an independent action in the District Court. We accordingly reverse the decision of the District Court sustaining its right to entertain this suit and remand the cause to that Court with direction to dismiss the complaint herein.
REVERSED.
. Section 791a, et seq., 16 U.S.C.
. § 8251(b), 16 U.S.C.
. The rules and regulations of the Commission have different provisions for filing notice of intent to file a competing application and for filing an application for exemption. The application of the County was filed on the approved form for notice of intent to file a competing application (§ 4.33(b) and (c) and not on the approved form for notice of intent to file an exemption application (§ 4.104(a)(2)).
. The evidence taken at trial indicated that the County knew almost a month before June 5 that the defendants would not withdraw its application for a temporary permit, yet it never took any steps to file a competing application or to seek an extension for such filing on or before June 5.
. Carey v. O’Donnell, 506 F.2d 107, 110 (D.C.Cir.), cert. denied 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975).
. City of Rochester v. Bond, supra, 603 F.2d at 937-38.
. Since we find the District Court was without the power to entertain the suit, we do not consider the merits of the County’s claim of fraud.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
WALLING, WAGE AND HOUR ADMINISTRATOR, v. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY.
No. 335.
Argued January 17, 1947.
Decided February 17, 1947.
William S. Tyson argued the cause for petitioner. With him on the brief were Acting Solicitor General Washington, Stanley M. Silverberg and Morton Liftin.
Walton Whitwell argued the cause for respondent. With him on the brief were Edwin F. Hunt and Wm. H. Swiggart.
Lester P. Schoene filed a brief for the Railway Labor Executives’ Association, as amicus curiae, in support of petitioner.
Me. Justice Black
delivered the opinion of the Court.
The petitioner, Administrator of the Wage and Hour Division, United States Department of Labor, filed this action in a Federal District Court to enjoin alleged violations by the respondent railroad of §§15 (a) (2) and 15 (a) (5) of the Fair Labor Standards Act. 52 Stat. 1060, 1068. These sections require that minimum wages be paid to employees covered by the Act and that appropriate records be kept concerning their employment and pay. The railroad was charged with having violated the Act with regard to two types of alleged employees: First, persons in training to become yard and main line firemen, brakemen, and switchmen; second, others in training to become clerks, stenographers, callers, messengers, and other similar general miscellaneous workers. The District Court held that the first group were not “employees” and therefore were not covered by the Act. On this ground alone the injunction was denied as to them. It also denied relief as to the second group, clerks, etc., partly on this same ground. Another ground for denying relief as to the second group was the court’s finding that the railroad “for several years past has been complying with the Act as to them, and apparently intends in good faith to do so in the future.” 60 F. Supp. 1004, 1007-1008. The Circuit Court of Appeals affirmed. 155 F. 2d 1016, one judge dissenting. We granted certiorari because of the importance of the questions decided. 329 U. S. 696.
The finding of the District Court that the railroad had been complying with the Act in good faith in its business relations with the trainee clerks, stenographers, etc. is not challenged. No argument is here made that this is not adequate support for denial of the relief granted as to this second group. Under these circumstances, we affirm the court’s action in denying an injunction to enjoin violations of the Act as to these trainees. We therefore do not reach the question as to whether this group as a whole or any of the persons in it were or were not employees under the Act.
The sole ground for denying relief as to the persons training to become firemen, brakemen, and switchmen was that they were not employees. The findings of fact here as to the training of these trainees are in all relevant respects practically identical with the findings of fact in Walling v. Portland Terminal Co., this day decided, ante, p. 148. These findings of fact are not challenged. For the reasons set out in that opinion we hold that the Circuit Court of Appeals was not in error in holding that the persons receiving training in order to become qualified for employment as firemen, brakemen, and switchmen, are not employees within the meaning of the Fair Labor Standards Act.
Affirmed.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
sc_petitionerstate
|
27
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
MICHIGAN v. JACKSON
No. 84-1531.
Argued December 9, 1985
Decided April 1, 1986
Stevens, J., delivered the opinion of the Court in which BRENNAN, White, Marshall, and Blackmun, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 636. Rehnquist, J., filed a dissenting opinion, in which Powell and O’Connor, JJ., joined, post, p. 637.
Brian E. Thiede argued the cause for petitioner in both cases and filed a brief for petitioner in No. 84-1539. John D. O’Hair, Timothy A. Baughman, and A. George Best II filed a brief for petitioner in No. 84-1531.
James Krogsrud, by appointment of the Court, 473 U. S. 903, argued the cause for respondent in No. 84-1531. With him on the brief was James R. Neuhard. Ronald J. Bretz, by appointment of the Court, 473 U. S. 903, argued the cause and filed a brief for respondent in No. 84-1539.
Together with No. 84-1539, Michigan v. Bladel, also on certiorari to the same court.
Justice Stevens
delivered the opinion of the Court.
In Edwards v. Arizona, 451 U. S. 477 (1981), we held that an accused person in custody who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id., at 484-485. In Solem v. Stumes, 465 U. S. 638 (1984), we reiterated that “Edwards established a bright-line rule to safeguard pre-existing rights,” id., at 646: “once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him.” Id., at 641.
The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment. In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained — and the Sixth Amendment violated— because the defendants had “requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations.” 421 Mich. 39, 67-68, 365 N. W. 2d 56, 69 (1984). We agree with that holding.
H-{
The relevant facts may be briefly stated. Respondent Bladel was convicted of the murder of three railroad employees at the Amtrak Station in Jackson, Michigan, on December 31, 1978. Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him. Prior to that questioning, the officers properly advised Bladel of his Miranda rights. Although he had inquired about his representation several times since the arraignment, Bladel was not told that a law firm had been appointed to represent him.
The trial court overruled Bladel’s objection to the admissibility of all four statements. On appeal from his conviction and sentence, Bladel challenged only the postarraignment confession. The Michigan Court of Appeals first rejected that challenge and affirmed the conviction, 106 Mich. App. 397, 308 N. W. 2d 230 (1981), but, after reconsideration in the light of a recent decision by the State Supreme Court, it reversed and remanded for a new trial. 118 Mich. App. 498, 325 N. W. 2d 421 (1982). The Michigan Supreme Court then granted the prosecutor’s application for leave to appeal and considered the case with respondent Jackson’s appeal of his conviction. 421 Mich. 39, 365 N. W. 2d 56 (1984).
Respondent Jackson was convicted of second-degree murder and conspiracy to commit second-degree murder. He was one of four participants in a wife’s plan to have her husband killed on July 12, 1979. Arrested on an unrelated charge on July 30, 1979, he made a series of six statements in response to police questioning prior to his arraignment at 4:30 p.m. on August 1. During the arraignment, Jackson requested that counsel be appointed for him. The police involved in his investigation were present at the arraignment. On the following morning, before he had an opportunity to consult with counsel, two police officers obtained another statement from Jackson to “confirm” that he was the person who had shot the victim. As was true of the six prearraignment statements, the questioning was preceded by advice of his Miranda rights and Jackson’s agreement to proceed without counsel being present.
The Michigan Court of Appeals held that the seventh statement was properly received in evidence. 114 Mich. App. 649, 319 N. W. 2d 613 (1982). It distinguished Edwards on the ground that Jackson’s request for an attorney had been made at his arraignment whereas Edwards’ request had been made during a custodial interrogation by the police. Accordingly, it affirmed Jackson’s conviction of murder, although it set aside the conspiracy conviction on unrelated grounds.
The Michigan Supreme Court held that the postarraignment statements in both cases should have been suppressed. Noting that the Sixth Amendment right to counsel attached at the time of the arraignments, the court concluded that the Edwards rule “applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. . . . The police cannot simply ignore a defendant’s unequivocal request for counsel.” 421 Mich., at 66-67, 365 N. W. 2d, at 68-69 (footnote omitted). We granted certiorari, 471 U. S. 1124 (1985), and we now affirm.
II
The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, 451 U. S., at 482; Miranda v. Arizona, 384 U. S. 436, 470 (1966). The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals “the initiation of adversary judicial proceedings” and thus the attachment of the Sixth Amendment, United States v. Gouveia, 467 U. S. 180, 187, 188 (1984); thereafter, government efforts to elicit information from the accused, including interrogation, represent “critical stages” at which the Sixth Amendment applies. Maine v. Moulton, 474 U. S. 159 (1985); United States v. Henry, 447 U. S. 264 (1980); Brewer v. Williams, 430 U. S. 387 (1977); Massiah v. United States, 377 U. S. 201 (1964). The question in these cases is whether respondents validly waived their right to counsel at the postarraignment custodial interrogations.
In Edwards, the request for counsel was made to the police during custodial interrogation, and the basis for the Court’s holding was the Fifth Amendment privilege against compelled self-incrimination. The Court noted the relevance of various Sixth Amendment precedents, 451 U. S., at 484, n. 8, but found it unnecessary to rely on the possible applicability of the Sixth Amendment. Id., at 480, n. 7. In these cases, the request for counsel was made to a judge during arraignment, and the basis for the Michigan Supreme Court opinion was the Sixth Amendment’s guarantee of the assistance of counsel. The State argues that the Edwards rule should not apply to these circumstances because there are legal differences in the basis for the claims; because there are factual differences in the contexts of the claims; and because respondents signed valid waivers of their right to counsel at the postarraignment custodial interrogations. We consider these contentions in turn.
The State contends that differences in the legal principles underlying the Fifth and Sixth Amendments compel the conclusion that the Edwards rule should not apply to a Sixth Amendment claim. Edwards flows from the Fifth Amendment’s right to counsel at custodial interrogations, the State argues; its relevance to the Sixth Amendment’s provision of the assistance of counsel is far less clear, and thus the Edwards principle for assessing waivers is unnecessary and inappropriate.
In our opinion, however, the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. The State’s argument misapprehends the nature of the pretrial protections afforded by the Sixth Amendment. In United States v. Gouveia, we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel:
“[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings ‘is far from a mere formalism.’ Kirby v. Illinois, 406 U. S., at 689. It is only at that time ‘that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecuto-rial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’” 467 U. S., at 189.
As a result, the “Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U. S., at 176. Thus, the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation.
Indeed, after a formal accusation has been made — and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment— the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, see United States v. Henry, 447 U. S. 264 (1980), or the electronic surveillance of conversations with third parties, see Maine v. Moulton, supra; Massiah v. United States, 377 U. S. 201 (1964), may violate the defendant’s Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment. Far from undermining the Edwards rule, the difference between the legal basis for the rule applied in Edwards and the Sixth Amendment claim asserted in these cases actually provides additional support for the application of the rule in these circumstances.
The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their request for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in Johnson v. Zerbst, 304 U. S. 458 (1938), a case involving an alleged waiver of a defendant’s Sixth Amendment right to counsel, the Court explained that we should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id., at 464. For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v. Williams, 430 U. S., at 404. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel — we presume that the defendant requests the lawyer’s services at every critical stage of the prosecution. We thus reject the State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.
The State points to another factual difference: the police may not know of the defendant’s request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State’s knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).
The State also argues that, because of these factual differences, the application of Edwards in a Sixth Amendment context will generate confusion. However, we have frequently emphasized that one of the characteristics of Edwards is its clear, “bright-line” quality. See, e. g., Smith v. Illinois, 469 U. S. 91, 98 (1984); Solem v. Stumes, 465 U. S., at 646; Oregon v. Bradshaw, 462 U. S. 1039, 1044 (1983) (plurality opinion); id., at 1054, n. 2 (MARSHALL, J., dissenting). We do not agree that applying the rule when the accused requests counsel at an arraignment, rather than in the police station, somehow diminishes that clarity. To the extent that there may have been any doubts about interpreting a request for counsel at an arraignment, or about the police responsibility to know of and respond to such a request, our opinion today resolves them.
Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect’s request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver. 451 U. S., at 484. We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.
r — H l-H
Edwards is grounded in the understanding that “the assertion of the right to counsel [is] a significant event,” 451 U. S., at 485, and that “additional safeguards are necessary when the accused asks for counsel.” Id., at 484. We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.
Although the Edwards decision itself rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to these cases. The judgments are accordingly affirmed.
It is so ordered.
See Miranda v. Arizona, 384 U. S. 436 (1966). The Miranda warnings were also given prior to the questioning on January 1, January 2, and March 22. Although Bladel made certain inculpatory statements on those occasions, he denied responsibility for the murder until after the arraignment. As the Michigan Supreme Court noted, even without his own statements, the evidence against Bladel was substantial. 421 Mich., at 44, and n. 2, 365 N. W. 2d, at 58-59, and n. 2.
Respondent Jackson points out that the Michigan Supreme Court also held that his fourth, fifth, and sixth statements should have been suppressed on grounds of prearraignment delay under a state statute. He therefore argues that the decision rests on an adequate and independent state ground and that the writ of certiorari should be dismissed. The state-court opinion, however, does not apply that prearraignment-delay holding to the seventh statement. Thus, although the Michigan court’s holding on the other statements does mean that Jackson’s conviction must be reversed regardless of this Court’s decision, the admissibility of the seventh statement is controlled by that court’s Sixth Amendment analysis, and is properly before us.
In Jackson, the State concedes that the arraignment represented the initiation of formal legal proceedings, and that the Sixth Amendment attached at that point. Brief for Petitioner in No. 84-1531, p. 10. In Bladel, however, the State disputes that contention, Brief for Petitioner in No. 84-1539, pp. 24-26. In view of the clear language in our decisions about the significance of arraignment, the State’s argument is untenable. See, e. g., Brewer v. Williams, 430 U. S. 387, 398 (1977) (“[A] person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment’”) (emphasis added), quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion). See also United States v. Gouveia, 467 U. S., at 187-188 (quoting Kirby); Estelle v. Smith, 451 U. S. 454, 469-470 (1981) (quoting Kirby); Moore v. Illinois, 434 U. S. 220, 226 (1977) (quoting Kirby). Cf. Powell v. Alabama, 287 U. S. 45, 57 (1932) (“[T]he most critical period of the proceedings against these defendants” was “from the time of their arraignment until the beginning of their trial”) (emphasis added). The question whether arraignment signals the initiation of adversary judicial proceedings, moreover, is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel, absent a valid waiver. Cf. Hamilton v. Alabama, 368 U. S. 52 (1961) (Alabama arraignment is a “critical stage”).
The Michigan Supreme Court found that “defendants’ request to the arraigning magistrate for appointment of counsel implicated only their Sixth Amendment right to counsel,” 421 Mich., at 52, 365 N. W. 2d, at 62, because the request was not made during custodial interrogation. It was for that reason that the Michigan court did not rely on a Fifth Amendment Edwards analysis. We express no comment on the validity of the Michigan court’s Fifth Amendment analysis.
Similarly, after the initiation of adversary judicial proceedings, the Sixth Amendment provides a right to counsel at a “critical stage” even when there is no interrogation and no Fifth Amendment applicability. See United States v. Wade, 388 U. S. 218 (1967) (Sixth Amendment provides right to counsel at postindictment lineup even though Fifth Amendment is not implicated).
In construing respondents’ request for counsel, we do not, of course, suggest that the right to counsel turns on such a request. See Brewer v. Williams, 430 U. S., at 404 (“[T]he right to counsel does not depend upon a request by the defendant”); Carnley v. Cochran, 369 U. S. 506, 513 (1962) (“[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request”). Rather, we construe the defendant’s request for counsel as an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation.
We also agree with the comments of the Michigan Supreme Court about the nature of an accused’s request for counsel:
“Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.” 421 Mich., at 63-64, 365 N. W. 2d, at 67.
See, e. g., Maine v. Moulton, 474 U. S. 159, 170-171 (1985):
“Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance” (emphasis added) (footnote omitted).
After stating our holding that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights,” 451 U. S., at 484, we appended this footnote:
“In Brewer v. Williams, 430 U. S. 387 (1977), where, as in Massiah v. United States, 377 U. S. 201 (1964), the Sixth Amendment right to counsel had accrued, the Court held that a valid waiver of counsel rights should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation or other efforts to elicit incriminating information. In Massiah and Brewer, counsel had been engaged or appointed and the admissions in question were elicited in his absence. But in McLeod v. Ohio, 381 U. S. 356 (1965), we summarily reversed a decision that the police could elicit information after indictment even though counsel had not yet been appointed.” Id., at 484, n. 8.
The State also argues that the Michigan Supreme Court’s finding of a valid Fifth Amendment waiver should require the finding of a valid Sixth Amendment waiver. The relationship between the validity of waivers for Fifth and Sixth Amendment purposes has been the subject of considerable attention in the courts, 421 Mich., at 55-62, 365 N. W. 2d, at 63-67 (discussing and collecting eases), and the commentaries, id., at 54, n. 15, 365 N. W. 2d, at 63, n. 15. In view of our holding that the Edwards rule applies to the Sixth Amendment and that the Sixth Amendment requires the suppression of the postarraignment statements, we need not decide either the validity of the Fifth Amendment waiver in this case, see n. 4, supra, or the general relationship between Fifth and Sixth Amendment waivers.
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
BARTLESVILLE ZINC CO. v. MELLON, Director General of Railroads.
No. 4620.
Circuit Court of Appeals, Seventh Circuit.
Feb. 24, 1932.
Harry C. Barnes, of Chicago, Ill., for appellant.
A. A. McLaughlin, of Des Moines, Iowa, and H. W. Davis and R. S. Outlaw, both of Chicago, Ill., for appellee.
Before ALSCHULER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Appellant, plaintiff in the trial court, a shipper, brought suit in assumpsit for the recovery of demurrage charges on interstate shipments paid by plaintiff to the Director General of Railroads during federal control, claiming that such charges were illegally assessed and collected. Appellee, a defendant below, is the governmental agent charged with final settlement of details of the national control of railroads. Defendant’s demurrer to the declaration was sustained, and plaintiff, electing to stand upon its declaration, appeals from a judgment entered dismissing the suit.
Viewed as a suit against the government agent to recover at law for an action arising out of operation of the railroads by the government, under section 206 (a) of the Transportation Act 1920 (41 Stat. 461, 49 USCA § 74 (a), it is clear that the District Court was without jurisdiction and rightfully dismissed the action. The act referred to provided that such actions should not be brought later than two years after passage of the law (1920). The demurrage charges sought to be accrued were paid to the Director General in the year 1918. The present suit was instituted on December 14, 1929. Inasmuch as such a suit is in effect an action against the government, it ceases to possess legal life if the conditions of the consent to sue are not complied with. Suitors may not bring actions against the United States without the latter’s consent, and the limitations placed upon such permission are not mere statutes of limitation, but conditions precedent to the right to sue. After the expiration of the two-year period, plaintiff had no consent to sue, and the court no jurisdiction to entertain its complaint. Davis v. Donovan, 265 U. S. 257, 44 S. Ct. 513, 68 L. Ed. 1008; Dupont, etc., Co. v. Davis, 264 U. S. 456, 44 S. Ct. 364, 68 L. Ed. 788; Flint River, etc., R. Co. v. Mellon, 58 App. D. C. 35, 24 F.(2d) 610; Knickerbocker Fuel Co. v. Mellon (C. C. A.) 22 F.(2d) 500; United States ex rel. Rauch v. Davis, 56 App. D. C. 46, 8 F.(2d) 907; Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638, 38 S. Ct. 408, 62 L. Ed. 914; Kansas City Southern Railway Co. v. Wolf, 261 U. S. 133, 43 S. Ct. 259, 67 L. Ed. 571.
But appellant insists that it is entitled to recover under section 206 (c), which provides that complaints for reparation for collection of illegal rates may be filed with the Interstate Commerce Commission within one year, or within two years and six months after the termination of federal control in the District Court against the federal agent, and that it may maintain this suit to review the action of the Commission, refusing the relief prayed. 42 Stat. 393 (49 USCA § 74 (e).
Under the act, the Commission is clothed with the same jurisdiction as it has under the Interstate Commerce Act. Section 9 of the latter provides that claims of .such character may be filed with the Commission or made the basis for suit in the United States District Court, but that the claimant shall not have the right to pursue both of the remedies, and must elect which of the two methods it will adopt. 24 Stat. 382 (49 USCA § 9).
On May 7, 1920, appellant filed with the Commission a complaint praying for reparation of the alleged overcharges now in suit. After hearing, that body rendered its decision, finding that the charges were not illegal and dismissing the complaint. Various proceedings were had before the Commission thereafter, until on November 20, 1927, it reopened the matter and on December 5, 1927, filed its supplemental report confirming its original findings and order. A petition filed in the Supreme Court of the District of Columbia seeking a writ of mandamus to compel the Commission to enter an award of reparation as prayed failed. An appeal to the Court of Appeals likewise met with defeat, Bartlesville Zinc Co. v. I. C. C., 58 App. D. C. 316, 30 F.(2d) 479, and petition for certiorari was denied by the Supreme Court April 22, 1929, 279 U. S. 856, 49 S. Ct. 351, 73 L. Ed. 997.
Section 9 of the Interstate Commerce Act was before the Supreme Court in Standard Oil Co. v. U. S. et al., 283 U. S. 235, 51 S. Ct. 429, 431, 75 L. Ed. 999, and in affirming the decision of the lower court (D. C.) 41 F.(2d) 836, the former said: “Section 9 of the Interstate Commerce Act, c. 104, 24 Stat. 370, 382 (U. S. C., title 49, § 9 [49 USCA § 9]), provides that a claim for damages against a common carrier may be brought before the Commission by complaint, or by an action in a federal district court of competent jurisdiction, but that the claimant or claimants 'shall not have the right to pursue both of said remedies, and must in each ease elect which one of the two methods of procedure herein provided for he or they will adopt.’ Having elected to proceed and having proceeded to a determination before the Commission, appellant was, by force of this provision, precluded from seeking reparation upon the same claims by the alternative method of procedure.”
The language is directly applicable to the ease at bar. The statute forbids the present action after the exercise of appellant’s option to seek relief before the Commission.
But appellant insists that the Commission erred in its findings and conclusions and has since so admitted. We do not so understand the references cited, but, were it true, this court is without jurisdiction to review the decision even though there were palpable error of law or evidence of arbitrary action. Authority for such review must have its origin in legislative enactment, and the Congress has as yet granted to courts the right to review only such orders of the Commission as are affirmative in character. Judicial Code § 24 (28), 28 USCA § 41 (28). There has been created no right of judicial review of orders entered in pursuance of the exercise of the Commission’s jurisdiction wherein it refuses to grant relief. Thus the Supreme Court said in Procter & Gamble Co. v. U. S., 225 U. S. 282, 32 S. Ct. 761, 765, 56 L. Ed. 1091: “Giving to these words their natural significance we think it follows that they confer jurisdiction only to entertain complaints as to affirmative orders of the Commission; that is, they give the court the right to take cognizance, when properly made, of complaints concerning the legality of orders rendered by the Commission, and confer power to relieve parties in whole or in part from the duty of obedience to orders which are found to be illegal. No resort to exposition can add to the cogency with which the conclusion stated is compelled by the plain meaning of the words themselves.” See, also, Manufacturers’ Railroad Co. v. U. S., 246 U. S. 457, 38 S. Ct. 383, 62 L. Ed. 831.
In Southern Transportation Co. v. I. C. C., 60 App. D. C. 49, 50, 47 F.(2d) 411, 413, the court said: “In other words, it limited the jurisdiction of the courts to intervene merely as to affirmative orders. It follows, therefore, that if the court were to suspend an order of the commission dismissing an application for reparation and enjoin an award thereof, as prayed for in this case, it would be in direct contravention to the original purpose and intent of the Commerce Act.”
It is clear that the contentions of appellant cannot be sustained, that the District Court had no jurisdiction, and that the judgment must be and is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Timothy WILSON, a Minor, by Robert Wilson, His Natural Parent and Guardian, and Robert Wilson, in His Own Right v. AMERICAN CHAIN & CABLE COMPANY, Inc. v. Robert WILSON and Hugh Lavery (Third-Party Defendant) Timothy Wilson, a Minor, by Robert Wilson, His Natural Parent and Guardian, Appellant. Timothy WILSON, a Minor, by Robert Wilson, His Natural Parent and Guardian, and Robert Wilson, in His Own Right v. AMERICAN CHAIN & CABLE COMPANY, Inc. v. Robert WILSON and Hugh Lavery (Third-Party Defendant) Robert Wilson, in His Own Right, Appellant.
Nos. 15450, 15458.
United States Court of Appeals Third Circuit.
Argued Jan. 7, 1966.
Decided Aug. 3, 1966.
See also, D.C., 38 F.R.D. 72; D.C., 216 F.Supp. 32.
Sidney J. Smolinsky, Phildelphia, Pa., for appellant in No. 15450.
Robert W. Costigan, Philadelphia, Pa., for appellant in No. 15458.
William J. McKinley, Jr., Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellee in both appeals.
OPINION OF THE COURT
Before BIGGS, GANEY and FREEDMAN, Circuit Judges.
FREEDMAN, Circuit Judge.
This is a diversity case arising under the law of Pennsylvania. Robert Wilson, the father of five year old Timothy Wilson, as guardian of the minor and on his own behalf brought this action against the defendant for negligence and wanton negligence in the design of its Lawndale riding rotary power lawn mower. The negligence alleged was that although it knew that rotary power mowers were dangerous and that injuries resulted from their use, defendant had failed to incorporate brakes, or a declutching device and to properly position and guard the discharge openings, all because of considerations of cost, aesthetics and space. As a result of the absence of a clutching device it was necessary to turn off the engine motor to bring the blade to rest. The defendant denied that it was negligent. As to the claim of the minor it also raised the defense of a superseding cause and as to the father’s claim alleged that he was contributorily negligent and that the required jurisdictional amount was lacking.
The plaintiffs’ version of the circumstances of the accident was given by the father. He testified that on August 3, 1959, while it was daylight, at about 6:30 P.M., Daylight Saving Time, he was mowing the lawn of his home in Springhouse, Pennsylvania, where he lived with his wife and five young children. He was using the defendant's power mower, which he had recently purchased on a trial basis. He had just finished supper and had left his wife and children in the house, assuming that the children would watch television as they usually did after supper. A little while after he had begun mowing the lawn, Wilson noticed his twenty-two month old daughter, Linda, running toward him. He placed the clutch in neutral, which stopped the forward motion of the mower but left the engine running and the mower blade rotating, and went to his daughter. He picked her up and put her in a swing some distance away. As he was fastening her in the swing, he heard a change in the sound from the lawn mower, and as he turned to look, saw Timothy seated on the mower. It was moving forward up an incline on the lawn. He froze for a moment, and then ran toward Timothy, but before he could reach him, Timothy fell over the side of the mower and its blade cut off the heel and achilles tendon of his right foot.
At the conclusion of plaintiffs’ evidence, the trial judge granted defendant’s motion to dismiss the father’s claim for lack of jurisdiction because the amount in controversy could not exceed $10,000 and also on the merits because he was guilty of contributory negligence as a matter of law. The minor’s case went forward, and after defendant presented its evidence the trial judge submitted to the jury the question of the defendant’s negligence and on the claim for punitive damages submitted the question of defendant’s wanton negligence. The jury returned a verdict in favor of the defendant and the subsequent motions for new trial and judgment N.O.V. by the minor and for new trial by the father were denied.
Two questions are presented to us on plaintiffs’ appeals: (1) the charge of the court on the question of superseding cause; and (2) the dismissal of the father’s claim because of (a) contributory negligence; and (b) the lack of diversity jurisdictional amount.
I.
The Minor’s Case
In the minor’s case, the jury was required first to decide whether the defendant was negligent in failing to build a machine safe for ordinary, foreseeable circumstances, and if so, whether the intervening conduct of the father was a “superseding” cause excusing it from liability. The trial judge correctly charged the jury on negligence and then defined superseding cause as existing where the intervening act is “so predominant that regardless of what the other person did, it is immaterial.” Again, in describing the difference between superseding and concurring negligence the trial judge told the jury: “Now, if you come to the conclusion that both parties were negligent here, then you would have [to] come to another conclusion in rendering a just verdict by saying, ‘Well, they were equally responsible or the negligence of one was so predominant, so superseded the negligence of the other, that it made it immaterial.’” Later the trial judge said: “* * * [W] as this accident caused because of the negligent design of this machine? Secondly, if you should conclude that the machine was negligently designed, is that what caused the accident to the boy? Third, if you conclude that the company was negligent in designing this, then you must go to the second case and decide what was the primary cause, or what was the cause. Was it the negligence of the father, assuming there was negligence? * * * If you find the father was not negligent and they were negligent, well, that is the end of it. If you find that they are both negligent, then you must find whether it was a concurrent act of both parties or whether one superseded the other and therefore that was the actual proximate cause of this injury.”
There can be no doubt from these statements that in determining whether it should hold the defendant liable the jury was guided by a direction which in effect told them that even if the defendant was negligent it was not liable if the father was negligent and his negligence was subsequent to and greater in extent or predominated over the negligence of the defendant. The charge therefore was erroneous under Pennsylvania law for two reasons. In the first place, it failed to tell the j ury that in order to be a superseding cause it is not enough that a later act is a predominant cause but that it must be so highly extraordinary as not to have been reasonably foreseeable. Secondly, the charge gave no indication that whether the intervening act was foreseeable is to be determined retrospectively and not prospectively. These principles have been followed by this Court in Leposki v. Railway Express Agency, Inc., 297 F.2d 849 (3 Cir. 1962), a Pennsylvania diversity case, like this. There the defendant parked its truck facing up a steep hill with a high crown, as a result of which gasoline leaked out of the opening of the gasoline tank into the gutter. A boy who was passing by threw a match into the gutter, igniting the gasoline. The ensuing fire reached the plaintiffs’ home where it caused property damage and personal injury to two infant children who were asleep inside. The defendant contended that any negligence on its part was superseded by the boy’s act of throwing the lighted match into the gasoline. The trial court instructed the jury: “Should the defendant be excused from liability to the plaintiffs by the intervening act of the boy in igniting the gasoline as he did? Could the defendant reasonably foresee that this might happen ? * * * if you decide that it could, you may find for the plaintiffs. If it could not have been anticipated or foreseen, your verdict should be for the defendant.”
We reversed, saying: “In Pennsylvania, an intervening negligent act by a third person does not, in all cases, constitute a superseding cause relieving an antecedent wrongdoer from liability for negligently creating a dangerous condition. The act is superseding only if it was so extraordinary as not to have been reasonably foreseeable. * * * The extraordinary nature of the intervening act is, however, determined by looking back from the harm or injury and tracing the sequence of events by which it was produced, * * * i. e., the events are viewed retrospectively and not prospectively. * * *
“The district court’s charge, viewed by this standard, was clearly misleading. Whether an intervening act constitutes a superseding cause is a question that is more readily resolved in hindsight, and that which appears to be extraordinary in the abstract may prove to be otherwise when considered in light of surrounding circumstances that existed at the time of the accident. It may be that a particular defendant is unaware'of the facts that led to events giving rise to the intervening act, yet the jury, viewing the matter retrospectively, could properly conclude that the act was not extraordinary. * * * Considering the intervening act in light of the circumstances that prevailed at the time defendant parked the truck, can it be said that the boy’s act was extraordinary? That is how the jury should have been instructed to view the question.” (850-851).
The trial judge therefore should have defined superseding cause and distinguished it from concurring cause by isolating the critical element, whether the act was so extraordinary as not to have been reasonably foreseeable, and should have instructed the jury that whether the act was reasonably foreseeable was to be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisaged the events which unfolded and caused the accident.
These errors in the charge are so fundamental that we must notice them on appeal, despite the plaintiff’s failure to object at the time as required by Rule 51. See Leposki v. Railway Express Agency, Inc., supra; McNello v. John B. Kelly, Inc., 283 F.2d 96, 102-103 (3 Cir. 1960). In Leposki (297 F.2d 850 n. 1), we indicated that the failure of the trial judge to point out the requirement that superseding cause is to be viewed retrospectively rather than prospectively was fundamental error. In the present case, more is involved than the single error which we there found fundamental. Here, in addition, the court failed to instruct the jury adequately on the distinction between superseding and intervening cause. The jury therefore was without adequate guidance on the' fundamental question whether defendant should be absolved from liability for negligence by the intervening action of the father. A verdict so arrived at is one ungoverned by the legal principles which determine the dispute between the parties and therefore may not be sustained as the ultimate product of the judicial process.
The judgment in favor of the defendant on the claim by the minor plaintiff through his natural parent and guardian therefore will be reversed and the cause remanded for a new trial.
II.
The Father's Claim
A. Contributory Negligence. In the claim of the minor plaintiff the trial judge submitted to the jury the question whether defendant was wantonly negligent as well as its ordinary negligence. But the father’s claim was held to be barred because he was contributorily negligent as a matter of law.
It is settled in Pennsylvania that a plaintiff who is guilty of contributory negligence, however slight it may be, is barred from recovery against a negligent defendant. Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957). An exception exists however, in cases where the negligence of the defendant is so gross as to amount to wanton negligence; in such a case contributory negligence of the plaintiff is not a bar. Kasanovich v. George, 348 Pa. 199, 34 A.2d 523 (1943); Tanner v. Pennsylvania Truck Lines, Inc., 363 Pa. 136, 69 A.2d 366 (1949); Restatement, Second, Torts § 482(1). If the evidence required the question of wanton negligence to be submitted to the jury in the minor’s claim, it was equally available to the father in his claim. The father’s claim therefore should have been submitted to the jury with instructions that if it found that the defendant was wantonly negligent, his claim would not be barred by contributory negligence on his part. For this reason alone the trial court erred in granting the motion to dismiss the father’s claim.
Even if no wanton negligence on the part of the defendant was shown, the question whether the father was guilty of contributory negligence should have been submitted to the jury and not determined against him as a matter of law. The modern rule in Pennsylvania is now well settled that the question of contributory negligence ordinarily is for the jury and will be declared as a matter of law only where it is so clear that there is no room for fair and reasonable disagreement as to its existence. Weidemoyer v. Swartz, 407 Pa. 282, 285, 180 A.2d 19 (1962). The circumstances must be viewed as the father reasonably believed them to exist, and elements which were not in his mind and which he could not reasonably have anticipated may not be permitted to impose a burden on him beyond the standard of due care. The reasonableness of his belief that all of the children were in the house and of his conduct in hurriedly leaving the mower as he did to put his twenty-two month old daughter in a place of safety, are all relevant in determining from the existing circumstances whether his conduct fell below the requirement of ordinary care. The jury’s attention therefore should have been focused on all the circumstances and it should have been instructed to determine from them whether they created a sudden emergency for which the father was not responsible and in the light of which he exercised ordinary care.
The question of the father’s contributory negligence, even if defendant had been found guilty only of negligence and not of wanton negligence, was a matter for the jury.
B. Amount in Controversy. The trial judge also held that the father’s claim must be dismissed because it did not satisfy the jurisdictional requirement that the amount in controversy must exceed $10,000. 28 U.S.C. § 1332(a).
The testimony showed that the father’s expenses for the treatment of the son’s injuries amounted to approximately $1,-500 and that the boy will be required to have special orthopedic shoes which will cost $33 annually until he reaches the age of twenty-one years or is emancipated. A physician gave his expert opinion that the boy’s condition will grow worse and will progressively restrict his activities. There was, however, no evidence regarding what loss of future earnings the father may sustain during the son’s minority, nor as to the cost of possible future medical or hospital care, although the evidence indicates that future medical attention will be necessary. Future loss of earnings of a child who is very young at the time of trial contains a large element of speculation which is excused out of necessity. But in the present case no real effort was made to supply the jury with any elements regarding the minor’s personal qualities which, however fragmentary, might have afforded some basis for determining his likely means of employment and earning power. Nor was any effort made to put into some concrete form the possible liability of the father for future medical or hospital care. In these circumstances, therefore, there was not enough to close the gap between the $2,000 proven loss and the $10,000 jurisdictional amount.
But whether a trial ultimately reveals the lack of proof of damages equal to the amount of the statutory requirement is not the test of jurisdiction. We recently had occasion to say that the standard by which the amount in controversy is to be judged is the subjective belief entertained in good faith at the time the allegation of damages is made, and since objective proof is evidence of subjective belief, a showing to a legal certainty that the claim is below the jurisdictional amount affords evidence of lack of subjective good faith. See Jaconski v. Avisun, 359 F.2d 931 (3 Cir. 1966); Brough v. Strathmann Supply Co., 358 F.2d 374, 377 (3 Cir. 1966). In the present case, however, the judge did not undertake to make a determination of good faith, nor did he submit the question to the jury for its decision. Instead, he determined the jurisdictional question by measuring whether the proofs would justify a verdict in the jurisdictional amount.
The determination of lack of jurisdictional amount therefore was made by the application of an erroneous standard and must be set aside.
' There is, moreover, a more fundamental error in the dismissal of the father’s claim for lack of jurisdiction, although it was not raised below or here. The father’s claim is not independent from the claim which he made on behalf of his minor son, for the father’s damages flowed to him from the injury which the son suffered and are ancillary to the son’s claim. In cases of this kind where parent and child or husband and wife are claimants, Pennsylvania statutes for many years have required that the “two rights of action shall be redressed in only one suit, brought in the names of the parent and child [or the husband and wife].” These statutory requirements have been continued under the rule-making power in the Pennsylvania Rules of Civil Procedure.
In these circumstances it seems to us both appropriate and right to apply the doctrine of pendent jurisdiction, by which a claim cognizable in the federal courts may be permitted to carry with it a related claim otherwise not within the federal jurisdiction, if both claims ordinarily would be tried in one judicial proceeding. The basis for this doctrine is the judicial economy, and the convenience and fairness to litigants which it serves. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 724-727, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); cf. Clark v. Paul Gray, Inc., 306 U.S. 583, 588-590, 59 S.Ct. 744, 83 L.Ed. 1001 (1939).
The usual case of pendent jurisdiction involves one plaintiff. Although the present case involves two plaintiffs, one the minor and the other the father in his own right, both these claims arise from the same occurrence. This unity is recognized and reinforced by the Pennsylvania requirement that they must be redressed in one action. We give recognition to this policy of Pennsylvania in treating the father’s claim as pendent to that of the minor. Indeed the father is the party plaintiff in both claims. We have already recognized the principle where diversity of citizenship existed in a survival action by permitting an accompanying wrongful death action, in which diversity of citizenship was lacking, to be maintained as pendent to it. It is equally applicable to cases such as this where the diversity requirement of the amount in controversy is present in one but absent in the other of the two related claims of parent and child. The cases which have refused to aggregate the amounts in controversy in two similar actions are not here applicable. Nor do we consider persuasive those cases where the application of pendent jurisdiction was not considered, although it might have been applied. Clark v. Paul Gray, Inc., 306 U.S. 583, 588-590, 59 S.Ct. 744 (1939), to whatever extent it has survived United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966), does not control the present case because there the individual plaintiffs were unrelated except in their effort to invalidate the statute assailed, whereas here the claim of the father flows secondarily from the injury to the son and because of this state law has created a unity of action.
The dismissal of the father’s claim on the ground of either lack of jurisdictional amount or contributory negligence as a matter of law therefore must be set aside.
In both appeals, therefore, the judgments will be reversed and a new trial awarded.
. The trial judge granted the motion for a directed verdict in favor of the third-party defendant, Hugh Lavery, a mechanic who had made some minor adjustments to the mower. No appeal was taken from this action. The defendant had also joined Robert Wilson, the father of the minor, as a third-party defendant, but in view of the verdict in favor of the defendant as to the minor plaintiff’s suit, no finding was made as between the defendant and the third-party defendant, Wilson.
. Doyle v. South Pittsburg Water Co., 414 Pa. 199, 202-205, 199 A.2d 875 (1964); Shimer v. Bangor Gas Co., 410 Pa. 92, 97-100, 188 A.2d 734 (1963); see also Restatement, Second, Torts § 447; Comment, Proximate Cause and the Pennsylvania Supreme Court: Twenty-Five Years In Review, 9 Villa.L.Rev. 453, 460-463 (1964).
. Skoda v. West Penn Power Co., 411 Pa. 323, 331, 191 A.2d 822 (1963) ; see also Restatement, Second, Torts § 435(2); 442; 440, comment b.
. Sowizral v. Hughes, 333 F.2d 829, 835-836 (3 Cir. 1964); Klink v. Harrison, 332 F.2d 219, 225 (3 Cir. 1964); Richardson v. Pennsylvania R.R., 338 Pa. 155, 158-159,12 A.2d 583 (1940).
. As to the effect of emancipation, compare Brough v. Strathmann Supply Co., 358 F.2d 374, 378 (3 Cir. 1966).
. Stewart v. Shanahan, 277 F.2d 233, 236-237 (8 Cir. 1960); Minsky’s Follies of Florida v. Sennes, 206 F.2d 1, 4 (5 Cir. 1953).
. Act of May 12, 1897, P.L. 62, § 1, 12 Purdon’s Pa.Stat.Annot. § 1625, relating to parent and child; Act of May 8, 1895, ' P.L. 54, § 1, 12 Purdon’s Pa.Stat.Annot. § 1621, relating to husband and wife.
. Rule 2228, 12 P.S.Appendix. The statutes were suspended by Rule 2250.
. Borror v. Sharon Steel Company, 327 F.2d 165, 172-174 (3 Cir. 1964); see also Yuba Consolidated Gold Fields v. Kilkeary, 206 F.2d 884, 890-891 (9 Cir. 1953).
. See the able opinion of Kirkpatrick, D. X, in Morris v. Gimbel Brothers, Inc., 246 F.Supp. 984 (E.D.Pa.1965); Raybould v. Mancini-Fattore Company, 186 F.Supp. 235 (E.D.Mich.1960). See contra: Sobel v. National Fruit Product Co., 213 F.Supp. 564 (E.D.Pa.1962); Hamilton v. Civillico, 34 F.R.D. 1 (E.D.Pa.1963).
. E. g., Payne v. State Farm Mutual Automobile Ins. Co., 266 F.2d 63 (5 Cir. 1959); Del Sesto v. Trans World Airlines, 201 F.Supp. 879 (D.R.I.1962).
. Compagnie Nationale Air France v. Castano, 358 F.2d 203, 207-208 (1 Cir. 1966); Arnold v. Troccoli, 344 F.2d 842, 843, n. 1 (2 Cir. 1965); Hackner v. Guaranty Trust Co. of N. Y., 117 F.2d 95 (2 Cir. 1941), cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520; Kataoka v. May Dep’t Stores Co., 115 F.2d 521 (9 Cir. 1940), cert. denied, 312 U.S. 700, 61 S.Ct. 739, 85 L.Ed. 1134 (1941).
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_casesource
|
026
|
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.
EGAN v. CITY OF AURORA et al.
No. 121.
Decided March 6, 1961.
Joseph Keig, Sr., Edwin R. Armstrong and Sol R. Friedman for petitioner.
William C. Murphy for respondents.
Per Curiam.
Petitioner, Mayor of the City of Aurora, brought this suit in the District Court against the City and certain of its officials for damages for deprivation of rights secured to him by the Constitution. He alleges unlawful action by the city and by individuals who are or who purport to be its officials (see 42 U. S. C. § 1983) and a conspiracy (see 42 U. S. C. § 1985). The District Court granted the motions to dismiss, 174 F. Supp. 794, and the Court of Appeals affirmed, 275 F. 2d 377, both decisions being prior to our opinion in Monroe v. Pape, ante, p. 167.
The dismissal as to the City of Aurora was correct, for we held in Monroe v. Pape, supra, that a municipality was not a “person” within the meaning of 42 U. S. C. § 1983. Insofar as any right claimed stems from petitioner’s status as mayor under Illinois law it is precluded from assertion here by Snowden v. Hughes, 321 U. S. 1. But as we read the complaint, the rights which petitioner claims he was deprived of are those that derive from the Fourteenth Amendment, particularly the right of free speech and assembly. The opinion of the Court of Appeals is not explicit as respects the grounds for dismissing the complaint under 42 U. S. C. § 1985. See Snowden v. Hughes, 321 U. S. 1; Collins v. Hardyman, 341 U. S. 651. The Court of Appeals, in affirming the judgment of the District Court on grounds other than the ones relied on by that court, seems to have decided the case on a construction of 42 U. S. C. § 1983 that apparently is incon-. sistent with the view we took in Monroe v. Pape, supra.
. Accordingly we grant the petition for certiorari, affirm the judgment in favor of the City of Aurora, vacate the judgment of the Court of Appeals in favor of the individual respondents and remand the cause as respects them to the Court of Appeals for reconsideration in light of this opinion.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_r_fed
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
In re the ESTATE OF Michael Patrick SMITH, et al., Plaintiffs-Appellants, and People of the State of Colorado, et al., Plaintiffs in Intervention-Appellants, v. Margaret HECKLER, et al., Defendants-Appellees.
Nos. 83-1442, 83-1466.
United States Court of Appeals, Tenth Circuit.
Oct. 29, 1984.
Kathleen Mullens, Legal Aid Society of Metropolitan Denver, Denver, Colo, (and John Robert Holland, Denver, Colo., for Medicaid Nursing Home, appellants, with Kristie A. Hansen, Denver, Colo., for State appellants, on the brief).
Shalom Brilliant, Civil Div., Dept, of Justice, Washington, D.C. (with J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Robert N. Miller, U.S. Atty., Denver, Colo., and Lewis K. Wise, Civil Div., Dept, of Justice, Washington, D.C., on the brief) for defendants-appellees.
Glenn W. Merrick, Denver, Colo., for amicus Concerned Friends and Relatives of Nursing Home Residents.
Michael C. Parks and Sylvia Drew Ivie, Nat. Health Law Program, Los Angeles, Cal., and Toby S. Edelman and Patricia B. Nemore, Nat. Senior Citizens Law Center, Washington, D.C., for the amicus Nat. Citizens Coalition for Nursing Home Reform and Gray Panthers of Denver.
Before SETH, and McKAY, Circuit Judges, and CAMPOS, District Judge.
Honorable Santiago E. Campos, United States District Judge, District of New Mexico, sitting by designation.
McKAY, Circuit Judge.
Plaintiffs, seeking relief under 42 U.S.C. § 1983 (1982), brought this class action on behalf of medicaid recipients residing in nursing homes in Colorado. They alleged that the Secretary of Health and Human Services (Secretary) has a statutory duty under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396n (1982), commonly known as the Medicaid Act, to develop and implement a system of nursing home review and enforcement designed to ensure that medicaid recipients residing in medicaid certified nursing homes actually receive the optimal medical and psychosocial care that they are entitled to under the Act. The plaintiffs contended that the enforcement system developed by the Secretary is “facility oriented,” not “patient oriented” and thereby fails to meet the statutory mandate. The district court found that although a patient care or “patient oriented” management system is feasible, the Secretary does not have a duty to introduce and require the use of such a system. In re Estate of Smith v. O’Halloran, 557 F.Supp. 289, 295 (D.Colo.1983).
The primary issue on appeal is whether the trial court erred in finding that the Secretary does not have a statutory duty to develop and implement a system of nursing home review and enforcement which focuses on and ensures high quality patient care. If the Secretary has such a duty we must determine whether the enforcement mechanism promulgated by the Secretary satisfies that duty.
BACKGROUND
The factual background of this complex lawsuit is fully discussed in the district court’s opinion. In re Estate of Smith v. O’Halloran, 557 F.Supp. 289 (D.Colo.1983). Briefly, plaintiffs instituted the lawsuit in an effort to improve the deplorable conditions at many nursing homes. They presented evidence of the lack of adequate medical care and of the widespread knowledge that care is inadequate. Indeed, the district court concluded that care and life in some nursing homes is so bad that the homes “could be characterized as orphanages for the aged.” Id. at 293.
When the suit was filed in 1975, plaintiffs named Colorado nursing home operators, and federal and Colorado state governmental agencies and officials as defendants. In 1978, plaintiffs and the Colorado governmental defendants stipulated to dismissal, without prejudice, of the claims against the Colorado governmental defendants. Pursuant to the stipulation, the state defendants filed a complaint in intervention on behalf of the people of Colorado against the federal defendants. After extensive pretrial discovery and preparation, the district court ordered separate trials for the federal defendant and the nursing home operators. In 1980, the plaintiffs, plaintiffs in intervention and federal defendant jointly moved for a stay, based on proposed regulatory revisions, which the plaintiffs and plaintiffs in intervention believed would accomplish the ultimate objective of the litigation. However, the proposed changes in the regulations were never adopted and the lawsuit against the federal defendant proceeded to trial in June 1982. The trial court denied relief. This appeal is from that judgment.
THE MEDICAID ACT
An understanding of the Medicaid Act (the Act) is essential to understand plaintiffs’ contentions. The purpose of the Act is to enable the federal government to assist states in providing medical assistance to “aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and ... rehabilitation and other services to help such ... individuals to attain or retain capabilities for independence or self care.” 42 U.S.C. § 1396 (1982). To receive funding, a state must submit to the Secretary and have approved by the Secretary a plan for medical assistance which meets the requirements of 42 U.S.C. § 1396a(a).
The district court detailed the requirements of section 1396a(a). See 557 F.Supp. at 294-95. A state seeking plan approval must establish or designate a single state agency to administer or supervise administration of the state plan, 42 U.S.C. § 1396a(a)(5), and must provide reports and information as the Secretary may require. Id. § 1396a(a)(6). Further, the state agency is responsible for establishing and maintaining health standards for institutions where the recipients of the medical assistance under the plan receive care or services. Id. § 1396a(a)(9)(A). The plan must include descriptions of the standards and methods the state will use to assure that medical or remedial care services provided to the recipients “are of high quality.” Id. § 1396a(a)(22)(D).
The state plan must also provide “for a regular program of medical review____of each patient’s need for skilled nursing facility care ..., a written plan of care, and, where applicable, a plan of rehabilitation prior to admission to a skilled nursing facility____” Id. § 1396a(a)(26)(A). Further, the plan must provide for periodic inspections by medical review teams of:
(i) the care being provided in such nursing facilities ... to persons receiving assistance under the State plan; (ii) with respect to each of the patients receiving such care, the adequacy of the services available in particular nursing facilities ... to meet the current health needs and promote the maximum physical well-being of patients receiving care in such facilities ...; (iii) the necessity and desirability of continued placement of such patients in such nursing facilities ...; and (iv) the feasibility of meeting their health care needs through alternative institutional or noninstitutional services.
Id. § 1396a(a)(26)(B).
The state plan must provide that any skilled nursing facility receiving payment comply with 42 U.S.C. § 1395x(j), which defines “skilled nursing facility” and sets out standards for approval under a state plan. Id. § 1396a(a)(28). The key requirement for purposes of this lawsuit is that a skilled nursing facility must meet “such other conditions relating to the health and safety of individuals who are furnished services in such institution or relating to the physical facilities thereof as the Secretary may find necessary____” Id. § 1395x(j)(15).
The state plan must provide for the appropriate state agency to establish a plan, consistent with regulations prescribed by the Secretary, for professional health personnel to review the appropriateness and quality of care and services furnished to Medicaid recipients. Id. § 1396a(a)(33)(A). The appropriate state agency must determine on an ongoing basis whether participating institutions meet the requirements for continued participation in the Medicaid program. Id. § 1396a(a)(33)(B). While the state has the initial responsibility for determining whether institutions are meeting the conditions of participation, section 1396a(a)(33)(B) gives the Secretary the authority to “look behind” the state’s determination of facility compliance, and make an independent and binding determination of whether institutions meet the requirements for participation in the state Medicaid plan. Thus, the state is responsible for conducting the review of facilities to determine whether they comply with the state plan. In conducting the review, however, the states must use federal standards, forms, methods and procedures. 42 C.F.R. § 431.610(f)(1) (1983). From 1972 through 1980, Congress required the Secretary to reimburse the states for all necessary costs of inspecting long-term care facilities. See 42 U.S.C. § 1396b(a)(4) (1976). In 1980, Congress reduced the rate of reimbursement to seventy-five percent of such costs. 42 U.S.C. § 1396b(a)(2) (1982).
The Secretary “shall approve” any plan which fulfills the requirements of section 1396a(a). Id. § 1396a(b). Once the state plan is approved, the Secretary reimburses the states according to percentages set out in section 1396b. If the state fails to show that it has an effective program of “utilization control” as defined in section 1396b(g)(3), the Secretary must reduce the percentage of reimbursement to the state. If after approving a state plan the Secretary determines that the plan has been so changed that it no longer complies with section 1396a(a), or that it complies on paper but not in its actual administration, the Secretary is required to terminate payments to the state, effectively disapproving the plan. Id. § 1396c.
IMPLEMENTING REGULATIONS
Congress gave the Secretary a general mandate to promulgate rules and regulations necessary to the efficient administration of the functions with which the Secretary is charged by the Act. 42 U.S.C. § 1302 (1982). Pursuant to this mandate the Secretary has promulgated standards for the care to be provided by skilled nursing facilities and intermediate care facilities. See 42 C.F.R. § 442.200-.516 (1983). Among other things, the regulations provide for the frequency and general content of patients’ attending physician evaluations, 42 C.F.R. § 405.1123(b), nursing services with policies “designed to ensure that each patient receives treatments, medications, ... diet as prescribed, ... rehabilitative nursing care as needed ..., is kept comfortable, clean, well-groomed, [is] protected from accident, injury, an infection, and [is] encouraged, assisted, and trained in self-care and group activities.” 42 C.F.R. § 405.1124(c). The rehabilitative nursing care is to be directed toward each patient achieving an optimal level of self-care and independence. Id. § 405.1124(e). The regulations require a written patient care plan to be developed and maintained for each patient. Id. § 405.1124(d). In addition to the rehabilitative nursing care provided for in section 405.1124(e) and (e), section 405.1126 provides specific standards for specialized rehabilitative services, as needed by patients to improve and maintain functioning. Finally, the regulations provide for treatment of the social and emotional needs of recipients. Id. § 405.1130.
The Secretary has established a procedure for determining whether state plans comply with , the standards set out in the regulations. This enforcement mechanism is known as the “survey/certification” inspection system. Under this system, the states conduct reviews of nursing homes pursuant to 42 U.S.C. § 1396a(a)(33). The Secretary then determines, on the basis of the survey results, whether the nursing home surveyed is eligible for certification and, thus, eligible for Medicaid funds. The states must-use federal standards, forms, methods and procedures in conducting the survey. 42 C.F.R. § 431.610(f)(1). At issue in this case is the form SSA-1569, record, appendix vol. 1, at 93-127, which the Secretary requires the states to use to show that the nursing homes participating in Medicaid under an approved state plan meet the conditions of participation contained in the Act and the regulations. Plaintiffs contend that the form is “facility oriented,” in that it focuses on the theoretical capability of the facility to .provide high quality care, rather than “patient oriented,” which would focus on the care actually provided. The district court found, with abundant support in the record, that the “facility oriented” characterization is appropriate and that the Secretary has repeatedly admitted that the form is “facility oriented.” In re Estate of Smith, 557 F.Supp. at 295.
THE' PLAINTIFFS’ CLAIMS
Plaintiffs contend that the statutory requirements regarding the content of state plans create a correlative entitlement for Medicaid recipients to quality care. They argue that the Secretary has an enforcement obligation to insure compliance with the approved state plan. More specifically, plaintiffs argue that the Secretary has a statutory duty to develop an enforcement system whereby to receive medicaid funds states would be forced to use a patient care management system. Such a system would ensure, through the review process of section 1396a(a)(33), that Medicaid recipients residing in nursing homes certified for Medicaid participation are “actually, continuously receiving their Medicaid entitlements to optimal medical and psychosocial care in a safe, sanitary, rehabilitatively supportive, accessible, personalized environment and in a context of full civil liberties as a condition of such facilities’ receipt of Federal and State financial reimbursement from the Medicaid Program.” In re Estate of Smith, 557 F.Supp. at 292.
The plaintiffs do not challenge the substantive medical standards, or “conditions of participation,” which have been adopted by the Secretary and which states must satisfy to have their plans approved. See 42 C.F.R. § 405.1101-.1137. Rather, plaintiffs challenge the enforcement mechanism the Secretary has established. The plaintiffs contend that the federal forms, form SSA-1569 in particular, which states are required to use, evaluate only the physical facilities and theoretical capability to render quality care. They claim that the surveys assess the care provided almost totally on the basis of the records, documentation and written policies of the facility being reviewed. Appellants’ brief at 10 (citing 45 Fed.Reg. 47,368 (1980)). Further, out of the 541 questions contained in the Secretary’s form SSA-1569 which must be answered by state survey and certification inspection teams, only 30 are “even marginally related to patient care or might require any patient observation____” Appellants’ brief at 10. Plaintiffs contend that the enforcement mechanism’s focus on the facility, rather tha,n on the care actually provided in the facility, results only in “paper compliance” with the substantive standards of the Act. Thus, plaintiffs contend, the Secretary has violated her statutory duty to assure that federal Medicaid monies are paid only to facilities which meet the substantive standards of the Act — facilities which actually provide high quality medical, rehabilitative and psychosocial care to resident Medicaid recipients.
THE DISTRICT COURT’S HOLDING
After hearing the evidence, the district court found the type of patient care management system advocated by plaintiffs clearly feasible and characterized the cur: rent enforcement system as “facility oriented.” In re Estate of Smith, 557 F.Supp. at 295. However, the court concluded that the failure to implement and require the use of a “patient oriented” system is not a violation of the Secretary’s statutory duty. Id. The essence of the district court’s holding was that the State of Colorado, not the federal government, is responsible for developing and enforcing standards which would assure high quality care in nursing homes and, thus, the State of Colorado, not the federal government, should have been the defendant in this case. Id. at 297.
The district court found that the duty lies with the state because the Medicaid Act provides that states are responsible for establishing and maintaining health standards for provider institutions, 42 U.S.C. § 1396a(a)(9)(A), and the states determine what kind and how many professional medical and supporting personnel will be used to administer the state plan. Id. § 1396a(a)(22)(A). The state plan must include standards and methods which the state will use to assure that the medical assistance provided is of high quality. Id. § 1396a(a)(22)(D). Section 1396a(a)(33) provides that the responsibility for inspecting nursing homes for survey and certification purposes lies with the state. In re Estate of Smith, 557 F.Supp. at 295-96.
The district court also concluded that the “look behind” provision of section 1396a(a)(33)(B), authorizing the Secretary to reject a survey/certification performed by the state agency and substitute her own independent and binding determination, is' “nothing more than permitted authority to intervene for the purpose of protecting the public funds used to reimburse the state.” Id. at 296. Nor did the district court believe that section 1302, the general mandate to make rules and regulations, imposes by itself a rulemaking duty on the Secretary. Further, the trial court held that, even if the Secretary has a duty to promulgate such regulations when section 1302 is read with section 1396a(a)(33)(A), the Secretary has satisfied that duty by promulgating the detailed regulations found in 42 C.F.R. Parts 430-456. 557 F.Supp. at 296.
The district court also found it significant that under Colorado law, the State of Colorado is responsible for licensing nursing homes, suspending a license if the public health or welfare is endangered, for regulating nursing home administration, and licensing and regulating the various professions which provide care in nursing homes. Id. at 297-98. The district court found that these state statutes provided further credibility to its interpretation of the statute: that the state is primarily responsible for administering and enforcing the Medicaid Act and that the role of the federal government is essentially limited to providing financial assistance to states which meet the statutory requirements for participation. Id. at 296.
THE SECRETARY’S DUTY
After carefully reviewing the statutory scheme of the Medicaid Act, the legislative history, and the district court’s opinion, we conclude that the district court improperly defined the Secretary’s duty under the statute. The federal government has more than a passive role in handing out money to the states. The district court erred in finding that the burden of enforcing the substantive provisions of the Medicaid Act is on the states., The Secretary of Health and Human Services has a duty to establish a system to adequately inform herself as to whether the facilities receiving federal money are satisfying the requirements of the Act. These requirements include providing high quality patient care. This duty to be adequately informed is not only a duty to be.informed at the time a facility is originally certified, but is a duty of continued supervision.
Nothing in the Medicaid Act indicates that Congress intended the physical facilities to be the end product. Rather, the purpose of the Act is to provide medical assistance and rehabilitative services. 42 U.S.C. § 1396. The Act repeatedly focuses on the care to be provided, with facilities being only part of that care. For example, the Act provides that health standards are to be developed and maintained, id. § 1396a(a)(9)(A), and that states must inform the Secretary what methods they will use to assure high quality care. Id. § 1396a(a)(22). In addition to the “adequacy of the services available,” the periodic inspections must address “the care being provided” in nursing facilities. Id. § 1396a(a)(26)(B). State plans must provide review of the “appropriateness and quálity of care and services furnished,” id. § 1396a(a)(33)(A), and do so on an ongoing basis. Id. § 1396a(a)(33)(B).
While the district court correctly noted that it is the state which develops specific standards and actually conducts the inspection, there is nothing in the Act to indicate that the state function relieves the Secretary of all responsibility to ensure that the purposes of the Act are being accomplished. The Secretary, not the states, determines which facilities are eligible for federal funds. See Conf.Rep. No. 1605, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News, 4989, 5370, 5390. While participation in the program is voluntary, states who choose to participate must comply with federal statutory requirements. Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980); Mississippi Hospital Association, Inc. v. Heckler, 701 F.2d 511, 515 (5th Cir.1983). The inspections may be conducted by the states, but the Secretary approves or disapproves the state’s plan for review. Further, the inspections must be made with federal forms, procedures and methods.
It would be anomalous to hold that the Secretary has a duty to determine whether a state plan meets the standards of the Act while holding that the Secretary can certify facilities without informing herself as to whether the facilities actually perform the functions required by the state plan. The Secretary has a duty to ensure more than paper compliance. The federal responsibility is particularly evident in the “look behind” provision. 42 U.S.C. § 1396a(a)(33)(B) (1982). We do not read the Secretary’s “look behind” authority as being “nothing more than permitted authority ...” 557 F.Supp. 296, as the district court found. Rather, we find that the purpose of that section is to assure that compliance is not merely facial, but substantive.
The legislative history makes clear that the “look behind” provision was added to the Act because the states were not properly carrying out the function of making sure that facilities were providing high quality care. The House report states:
[T]he Committee is concerned that, without the authority to validate State agency compliance reviews and to make an independent judgment as to the extent of compliance by particular facilities, the Secretary lacks the means necessary to assure that Federal matching funds are being used to reimburse only those [skilled nursing facilities] and [intermediate care facilities] that actually comply with medicaid requirements.
H.R.Rep. No. 1167, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Ad. News 5526, 5570. The district court’s conclusion that this section merely provides the Secretary the authority to go behind a state’s determination of compliance if and when the Secretary wants to, but imposes no duty on the Secretary, ignores the purpose of the section and eliminates its effectiveness.
By enacting section 1302 Congress gave the Secretary authority to promulgate regulations to achieve the functions with which she is charged. The “look-behind” provision and its legislative history clearly show that Congress intended the Secretary to be responsible for assuring that federal Medicaid money is given only to those institutions that actually comply with Medicaid requirements. The Act’s requirements include providing high quality medical care and rehabilitative services. In fact, the quality of the care provided to the aged is the focus of the Act. Being charged with this function, we must conclude that a failure to promulgate regulations that allow the Secretary to remain informed, on a continuing basis, as to whether facilities receiving federal money are meeting the requirements of the Act, is an abdication of the Secretary’s duty. While the Medicaid Act is admittedly very complex and the Secretary has “exceptionally broad authority to prescribe standards for applying certain sections of the Act,” Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2639, 69 L.Ed.2d 460 (1981), the Secretary’s authority cannot be interpreted so as to hold that that authority is merely permissive authority. The Secretary must insure that states comply with the congressional mandate to provide high quality medical care and rehabilitative services.
The district court made a factual finding that the Secretary’s current method. of informing herself as to whether the facilities in question are satisfying the statutory requirements is “facility oriented,” rather than “patient oriented.” 557 F. Supp. at 295. This characterization is fully supported by the record. Having determined that the purpose and the focus of the Act is to provide high quality medical care, we conclude that by promulgating a facility oriented enforcement system the Secretary has failed to follow that focus and such failure is arbitrary and capricious. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983).
REMEDY
The district court found that the Secretary owed no duty to the plaintiffs and thus denied the requested relief. Plaintiffs contend that the district court has jurisdiction to compel the Secretary to perform her statutory duty pursuant to the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361 (1982), federal question jurisdiction, 28 U.S.C. § 1331 (1982), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982).
This court considered the mandamus remedy in Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981). We repeated there the general rule that mandamus is appropriate where the person seeking the relief “can show a duty owed to him by the government official to whom the writ is directed that is ministerial, clearly defined and peremptory.” Id. at 566 (quoting Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976)). This ministerial-discretionary dichotomy, we noted, “is merely shorthand for the well-taken rule that to the extent a statute vests discretion in a public official, his exercise of that discretion should not be controlled by the judiciary.” Id. The judiciary is not a “super agency” controlling the affairs of an agency which is part of another branch of government. Id.
[I]t is the court’s duty in a mandamus action to measure the allegations in the complaint against the statutory and constitutional framework to determine whether the particular official actions complained of fall within the scope of the discretion which Congress accorded the administrators____ In other words, even in an area generally left to agency discretion, there may well exist statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised. In these situations, mandamus will lie when the standards have been ignored or violated.
Id. (quoting Davis Associates, Inc. v. Secretary, Department of Housing and Urban Development, 498 F.2d 385, 389 & n. 5 (1st Cir.1974)). If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congress intended him to perform, the court should compel performance, thus effectuating the congressional purpose. Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 566.
We also held in Carpet, Linoleum and Resilient Tile Layers that 28 U.S.C. § 1331 gives the district court jurisdiction to issue a mandatory injunction. The injunctive remedy is provided for by the Administrative Procedure Act, 5 U.S.C. § 706(1), where a court' reviewing agency action is authorized to “compel agency action unlawfully withheld.” Thus, in Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 567, we concluded that a mandatory injunction is essentially in the nature of mandamus, and jurisdiction can be based on either 28 U.S.C. § 1361, § 1331, or both.
Applying these principles, we find that jurisdiction exists and mandamus is an appropriate remedy. The Secretary has a duty to promulgate regulations which will enable her to be informed as to whether the nursing facilities receiving federal Medicaid funds are actually providing high quality medical care. This conclusion is fully supported by the statute and its legislative history. The statute vests broad discretion in the Secretary as to how that duty is best accomplished. The court is not a “super agency” and cannot control the specifics of how the Secretary satisfies the duty. This is not a question of controlling the Secretary’s discretion because the Secretary has failed to discharge her statutory duty altogether. Thus, the court should “compel performance and thus effectuate the congressional purpose,” behind the statutory scheme. Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 566. The case is thus remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. The Act defines various health care services that qualify for federal assistance. Relevant here are skilled nursing facilities, § 1396d(a)(4) and § 1396d(f), which states must have to receive funding, and intermediate care facilities, § 1396d(a)(15) and § 1396d(c) and (d), which states may receive funding to operate, but states are not required to operate.
. The state plan must provide for similar review of intermediate care facilities. § 1396a(a)(31).
. Our conclusions are further evidenced by Congress’ recent amendment to the Medicaid Act. Tax Reform Act of 1984, Pub.L. No. 98-369 (1984). Directly in response to the district court’s opinion in this case, Congress amended the Act specifically imposing upon the Secretary a duty to assure that Medicaid patients in skilled nursing and intermediate care facilities receive high quality medical care. The legislative history indicates that Congress was merely reaffirming the Secretary's duty under existing law because Congress believed the district court misinterpreted the statute. 130 Cong.Rec. H 6544, 6740 (daily ed. June 22, 1984); Deficit Reduction Act of 1984, Conf.Rep. No. 861, 98th Cong., 2d Sess. 1363 (1984). We do not address the issue of whether a current legislature’s comment on the intent of a previous legislature is binding. However, the amendment and its legislative history make the Secretary’s duty under the Act even more clear.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_interven
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 810, STEEL, METALS, ALLOYS & HARDWARE FABRICATORS & WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent, and Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., Intervenors.
Nos. 574, 575, Dockets 71-1951, 71-2062.
United States Court of Appeals, Second Circuit.
Argued March 24, 1972.
Decided May 11, 1972.
Jack H. Weiner, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Washington, D. C., on the brief), for petitioner.
Thomas Canafax, Jr., Washington, D. C. (Shimmel, Hill & Bishop, Washington, D. C., and Henry Brickman, New York City, on the brief), for respondent.
John T. Redmond, New York City (James H. Tully, Jr., Wood, Redmond & Tully, New York City, on the brief), for intervenors.
Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
HAYS, Circuit Judge:
The National Labor Relations Board filed this application for enforcement of its order directing respondent Local 810 to cease and desist from conducting a secondary boycott in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations. Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B) (1970). The charging parties, Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., intervened, urging that the application be granted. The Union cross-petitioned to set aside the Board’s order. We deny enforcement of the Board’s order and grant respondent’s cross-petition to set it aside.
I. The Facts
The Trial Examiner’s findings of fact were adopted by the Board and are supported by substantial evidence. These findings establish the following:
A. The Initial Dispute
An employee of Sid Harvey Supply, Inc. was discharged on February 20, 1970, and the Union went on strike after the company refused to reinstate him. The Union began picketing Supply that day, and on March 10 commenced picketing Sid Harvey, Inc. In May and June, members of the Union picketed and distributed handbills in front of stores operated by Sid Harvey Brooklyn Corp., Sid Harvey Nassau, Inc., and Sid Harvey Suffolk, Inc. The picket signs and leaflets, and the verbal exhortations of the pickets, requested the public not to buy Sid Harvey products. The pickets were successful in persuading some of the potential customers of one store operated by Nassau not to patronize that store, and also prevailed on carriers not to make deliveries to Inc. and Brooklyn. On June 11 the Union discontinued the picketing of Inc., Brooklyn, Nassau, and Suffolk after the United States District Court for the Eastern District of New York temporarily enjoined the Union from picketing the four corporations in violation of § 8(b) (4) (i) and (ii) (B).
B. Relationships Among the Sid Harvey Companies
1. Structure and Operations
Supply, the company which the Union struck, and the four companies the Union picketed before the issuance of the temporary injunction, are a part of a complex of interrelated corporations operating on a nationwide basis. The Sid Harvey corporations are engaged in the reconditioning, distribution, and sale of air conditioning and heating equipment to trade users. While the Sid Harvey corporations are not totally interdependent, they constitute what is essentially a vertically integrated operation, or to use the popular term for their relationship to each other, they are engaged in a straight-line operation.
The keystone of the Sid Harvey organization is Inc., located in Valley Stream, Long Island. Inc., and Sid Harvey Midwest, Inc., located in Illinois, are engaged in the business of rebuilding and reconditioning air conditioning and heating equipment and parts for such equipment. Inc. obtains the used equipment that it rebuilds from the sales companies within the Sid Harvey group.
The equipment rebuilt by Inc. is warehoused and then distributed by Supply to the various Sid Harvey sales companies. Supply does not distribute only Inc. goods, but all of Inc.’s goods are distributed by Supply. Supply distributes only to sales companies within the Sid Harvey group.
Although the record is not entirely clear, it appears that there are approximately 20 sales companies in the Sid Harvey group, many of which, like Nassau, Brooklyn, and Suffolk, have corporate names containing the words “Sid Harvey.” These sales companies receive from Inc. via Supply all the rebuilt equipment they sell. The greater part of the new equipment sold by the sales companies is obtained indirectly from the manufacturers through Supply, with the remaining portion obtained directly from manufacturers. Thus, of Nassau’s sales, 40% represents sales of Inc.’s rebuilt equipment, and 60% is of new equipment; 60% of the new equipment sold is obtained through Supply. The corresponding figures for Brooklyn are 20%, 80%, and 85-90%, and for Suffolk are 33%, 67%, and 70%.
2. Control
Stephen Harvey owns 100% of the voting stock of Inc., and is chairman of the board of directors, president, and treasurer. Supply is owned by fourteen Sid Harvey sales companies located in the Northeast. Stephen Harvey has voting control of nine of these sales companies, including Brooklyn and Nassau. Collectively those nine own 73% of the stock of Supply. Stephen Harvey is chairman of the board and an officer of each of these sales companies, and is chairman of the board and treasurer of Supply. Although Stephen Harvey has a commanding position in the interlocking corporate structure of the Sid Harvey group, the Trial Examiner found that he “has no actual day-to-day duties in any of these corporations except Inc.”
3. Corporate Policy and Functional Relationships
Much of the hearing and a large part of the opinion of the Trial Examiner were devoted to an examination of policies, practices, and working conditions within the various Sid Harvey corporations. In view of the basic questions raised by a suit of this nature, a good deal of what the Trial Examiner concerned himself with was of marginal relevance and dubious materiality.
The Trial Examiner found that some of Inc.’s marketing activities are conducted in the building where Supply has its offices, although the areas in which the two corporations are located “are separated by partitions and lockable doors (which are open during working hours), and the employees of each company have separate entrances and separate restrooms.” The two pay rent directly to the landlord, a partnership in which Stephen Harvey “has an interest,” as he does in all the partnerships from which companies in the Sid Harvey group rent land and facilities. The two corporations located in the one building utilize a common switchboard, and Inc. pays Supply a service fee for “some minor services” such as janitorial work. All the companies in the Sid Harvey group have the same hospital, medical, group life, and automobile liability policies. Occasionally an employee of one of the companies will take a job with another Sid Harvey company. One accounting firm served all the Sid Harvey corporations and it “prepared an office manual of standard operating procedures.” However the companies were not required to use the manual.
The Trial Examiner compared the working conditions at Supply and Inc. and found:
“Although [the Union] showed a number of working conditions in common among the employees of Inc. and Supply, [including “the same system of rating jobs, the same work hours and two 10-minute rest periods, the same number of holidays, Christmas bonuses based upon length of service, the same profit-sharing program”] there were also many working conditions that were different between the two groups .... The two groups had different rules for qualification of overtime, different sick pay and disability benefits, and other benefits. Supply has no pension plan; Inc. does. Inc. has a cash attendance award. Supply does not. Inc. has a savings plan for employees; Supply does not. There are differences in the rules on ‘tardiness,’ smoking, making telephone calls, working on Election Day, to mention a few.”
More important for the question presented by this case, the Trial Examiner and the Board found that once a year “the presidents and some other top executives” of the Sid Harvey group of companies meet to discuss problems common to the companies. The Board found that at the May, 1970 meeting the strike at Supply was discussed, but “there was no proof that overall policies resulted from these meetings, particularly no overall labor policy or personnel policy.”
In addition the Board found that Stephen Harvey had personally fired two presidents of two Sid Harvey companies, and that he actively oversaw and controlled the financial aspects of the Sid Harvey companies. Inc. publishes a monthly news letter, “Renews,” which the Trial Examiner termed a “house organ.” This house organ contains news about people in the various Sid Harvey companies as well as corporate news. Its content reveals that the personnel of the companies considered themselves to be engaged in interlocking business activities in an interrelated corporate structure.
II. The Decision of the Board
The Board, adopting the Trial Examiner’s decision, stated that the question of whether the Union had violated § 8(b) (4) (i) and (ii) (B) by picketing Brooklyn, Suffolk, Nassau, and Inc. turned on whether the related companies were so closely allied as not to be “other employer [s]” within the meaning of that section. The Board said:
“On the ‘ally’ issue the precise question is whether the corporations were under the actual control of Stephen Harvey, as distinguished from his potential control.”
The Board found
“[u]pon all. the above facts and considerations and the entire record in the case considered as a whole . . . that despite the cooperation and mutual assistance among the various corporations directly involved herein, there is not that appreciable degree of integration of management and day-to-day operations between Supply, the primary employer, and the others, as to make them allies and deprive Inc., Brooklyn, Nassau, and Suffolk of the protection of Section 8(b) (4) of the Act.” (Emphasis added.)
In so holding, the Board relied heavily on the conclusion, that, despite Stephen Harvey’s dominant position in the corporate structures of Inc., Supply, and the various Sid Harvey sales companies, he did not actually control the daily operations of all these companies. In addition, in considering the differences in the working conditions and benefits of Supply, Inc., and the sales companies, the Board assumed that if the management and operations of the Sid Harvey group were integrated on a day to day basis, all working conditions and benefits — such as smoking rules and disability benefits — would be the same, regardless of the function or size of the individual company.
III. Section 8(b) (4) and the Neutral Secondary Employer
The question presented for decision by the Board was whether the four secondary employers picketed by the Union were in fact the same employer within the meaning of § 8(b) (4) (i) and (ii) (B), which provides:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
******
(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in any industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . . ”
The question presented in this case is whether the Board applied the correct legal test and whether it could properly conclude, on the basis of the evidence in the record that the four employers picketed by the Union were “other employer [s]” within the meaning of the Act.
Section 8(b) (4), as amended, was enacted to prevent the widening of a labor dispute to entangle employers who had no concern with the original dispute. To this end Congress prohibited unions from engaging in secondary boycotts, that is “pressure tactically directed toward a neutral employer in a labor dispute not his own.” National Woodwork Mfrs. Ass’n v. N. L. R. B., 386 U.S. 612, 623, 87 S.Ct. 1250, 1257, 18 L.Ed.2d 357 (1967) (footnote omitted). The broad policy objective of this section is “the protection of neutrals against secondary pressure . . . .” Id. at 627, 87 S.Ct. at 1259 (emphasis added) “Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b) (4) (B). This concern was focused on the ‘secondary boycott,’ which was conceived of as pressure brought to bear, not ‘upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it’ ” (footnotes omitted). N. L. R. B. v. Local 825, Int’l Union of Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971). The basic question in this case is whether in fact Inc., Nassau, Brooklyn, and Suffolk were neutral third parties in the dispute between respondent Union and Supply. N. L. R. B. v. Local 810, Steel Fabricators, 299 F.2d 636, 637 (2d Cir. 1962); N. L. R. B. v. Milk Drivers Local 584, 341 F.2d 29, 32-33 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965).
In determining whether an employer is in fact a neutral in a labor dispute, the courts have considered such factors as the extent to which a corporation is de facto under the control of another corporation, the extent of common ownership of the two employers, the integration of the business operations of the employers, and the dependence of one employer on the other employer for a substantial portion of its business. See, e. g., Carpet Layers Local 419 v. N. L. R. B., 429 F.2d 747, 752 (D.C. Cir. 1970); N. L. R. B. v. General Teamsters Local 126, 435 F.2d 288, 291 (7th Cir. 1970); Truck Drivers Local 728 v. Empire State Express, Inc., 293 F.2d 414, 423 (5th Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 365, 7 L.Ed.2d 194 (1961); N. L. R. B. v. Somerset Classics, Inc., 193 F.2d 613, 615 (2d Cir.), cert. denied, 344 U.S. 816, 73 S.Ct. 10, 97 L.Ed. 635 (1952).
As the court said in Vulcan Materials Co. v. United Steelworkers of America, 430 F.2d 446, 451, 453 (5th Cir. 1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971):
“In the final analysis, however, the question of neutrality cannot be answered by the application of a set of verbal formulae. Rather, the issue can be resolved only by considering on a case-by-case basis the factual relationship which the secondary employer bears to the primary employer up against the intent of the Congress as expressed in the Act to protect employers who are ‘wholly unconcerned’ and not involved in the labor dispute between the primary employer and the union.
* * * * * *
In determining whether the relationship of a secondary employer and a primary employer is such as to destroy neutrality, the court must look to the essence of the relationship, and not to its incidental trappings.”
See also Local 24, Int’l Bhd. of Teamsters v. N. L. R. B., 266 F.2d 675, 680 (D.C. Cir. 1959). The Supreme Court has cautioned against the mechanical application of tests which obscures the “central theme” — neutrality—of this section. Nat’l Woodwork Mfrs. Ass’n v. N. L. R. B., supra, at 625, 87 S.Ct. 1250. See also Local 761, Intern Union of Electrical, etc., Workers. v. N. L. R. B., 366 U.S. 667, 677, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Cf. N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).
Neutrality, for purposes of the Act, is not a technical concept. To determine whether an employer is neutral involves a common sense evaluation of the relationship between the two employers who are being picketed. In mechanically applying a “day-to-day” test in this case, the Board engaged in a technical exercise in the intricacies of corporate structure rather than a realistic, common sense evaluation of neutrality.
The Sid Harvey organization is essentially an integrated complex which manufactures, distributes, and sells a limited number of products. Ownership and control of the five corporations is centralized or overlapping. The daily contact among the corporations is extensive, and the operation and success of each is interrelated with and heavily dependent upon the other members of the group performing their assigned tasks. Only in the most strained and technical sense could the picketed employers be characterized as neutral.
The petition for enforcement is denied, and the cross petition for an order vacating the order of the Board is granted.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
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songer_genapel1
|
H
|
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.
FIRST NAT. BANK OF WACO et al. v. SHEEHY. In re SOUTH BROS. TRUNK CO.
Circuit Court of Appeals, Fifth Circuit.
November 27, 1928.
No. 5331.
Allan D. Sanford and H. M. Richey, both of Waco, Tex., for appellants.
W. W. Naman, of Waco, Tex. (Spell, Naman & Penland, of Waco, Tex., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Rehearing denied January 12, 1929.
BRYAN, Circuit Judge.
The District Judge affirmed orders of the referee in bankruptcy which required the appellant banks to pay certain bank deposits over to the trustee in bankruptcy. The banks take the position on this appeal that they had the right to credit the deposits on notes which they held against the bankrupt
On September 17, 1926, the South Bros. Trunk Company had a deposit of $15 in the First National Bank of Waco, Tex., and owed that bank $17,500 on notes. On the same date the trunk company had a deposit of $4,489.06 in the Citizens’ National Bank of Waco, and owed that bank $10,000 on notes. At that time the trunk company was insolvent, and its stockholders turned its assets and the management of its affairs over to' a- committee, with authority to dispose of such assets as were necessary to pay its debts. The presidents of the twtf banks were stockholders of the trunk company, and they became chairman and treasurer, respectively, of this committee. The banks themselves and other principal creditors joined with the committee in sending out letters requesting the co-operation of the remaining creditors. The committee took eharge of the trunk company’s bank accounts, and transferred its bank deposits to the credit of the committee, in the name of the president of the Citizens’ National Bank for the account of the trunk company. The deposits in the banks were thereafter made to the credit of the committee, and were increased by collections to such an extent that, when the petition in bankruptcy was filed against the trunk company the deposits amounted to $5,760.66 in the First National Bank, and to $5,396.22 in the Citizens’ National Bank. In the meantime the notes held by the banks had not been reduced. When bankruptcy intervened, each of the banks credited the notes it held with the amount on deposit.
Section 68 of the Bankruptcy Act (11 USCA § 108) authorizes mutual debts or credits between the estate of the bankrupt and the creditors to be set off, and the balances to be allowed or paid. We are of opinion that the relation of debtor and creditor wMch ordinarily exists between banks and their depositors was so changed by the participation of the banks in the plan of the committee as to make the deposits a trust fund for the benefit, not only of the trunk company, but of all its creditors as well. Upon the creation of the committee the deposits no longer remained subject to cheek by the trunk company, but by agreement were turned over to the committee and placed to its credit. The banks waived their banker’s liens on deposits to the credit of the trunk company, by agreeing to the transfer of those deposits to the credit of the committee. To allow the banks afterwards to take credit, as against the trunk company, on their notes, would be to uphold a violation of the agreement under which all deposits were held in trust. May v. Henderson, 268 U. S. 111, 116, 45 S. Ct. 456, 69 L. Ed. 870; Merrimack Nat. Bank v. Bailey (C. C. A.) 289 F. 468; Wagner v. Citizens’ Bank, 122 Tenn. 164, 122 S. W. 245, 28 L. R. A. (N. S.) 484, 135 Am. St. Rep. 869, 19 Ann. Cas. 483.
The order appealed from is affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_4_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Your task is to determine which specific substate government agency best describes this litigant.
James Earl BUIE, Appellant, v. Otis JONES, Sheriff; Frank Armstrong, Chief Jailer; Robert L. Hubbard, Jailer; Cumberland County of N.C., Appellees.
Nos. 82-6201, 82-6522.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 11, 1983.
Decided Sept. 15, 1983.
Kenneth A. Zick, II, Associate Professor of Law, Wake Forest University School of Law, Winston-Salem, N.C., Michele C. Bar-toli, Third Year Law Student (Alexis C. Pearce, Third Year Law Student on brief) for appellant.
Larry J. McGlothlin and Garris Neil Yar-borough, Fayetteville, N.C., for appellees.
Before RUSSELL and MURNAGHAN, Circuit Judges, and ROBERT R. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
DONALD RUSSELL, Circuit Judge:
James E. Buie, a State prisoner, appeals the grant of summary judgment in favor of the defendants in his civil rights actions under Section 1983, 42 U.S.C. against the sheriff, the deputy sheriff of Cumberland County (North Carolina) and the chief jailer of the Cumberland County Jail.
The action was first filed by the plaintiff pro se and an order was issued by the district court permitting the plaintiff to proceed pro forma, pauperis. The actions were thereafter duly referred to the Magistrate. After a hearing the Magistrate dismissed the actions and granted summary judgment to the defendants on all the claims. This appeal by the plaintiff followed. We affirm.
Though the plaintiff asserted in his complaint some ten alleged constitutional violations, he has on this appeal confined his claims of error to three alleged deprivations. These are (1) a violation of his visitation rights with his minor children, (2) his subjection to a strip and body-cavity search in violation of his right to be free from unreasonable searches, and (3) an infringement of his right of free speech by reason of the opening of his mail by jail personnel, all while confined at the Cumberland County Jail. In pressing these claims, he sought both damages and injunctive and declaratory relief. The Magistrate dismissed his claim arising out of the strip search under the authority of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). We affirm such dismissal. The plaintiff’s claim that his mail was opened without his presence in violation of his First and Fourteenth Amendment rights involves a few isolated instances of plaintiff’s mail being opened out of his presence. These isolated instances, however, did appear to have been contrary to the policy of the Jail and to have been either accidental or the result of unauthorized subordinate conduct and were not of constitutional magnitude. A pretrial detainee’s visitation rights were not definitely established as a constitutional right during the time the plaintiff was incarcerated as a pretrial detainee at the Cumberland County Jail. For this reason damages are not recoverable. Accordingly declaratory and injunctive relief represented the only relief that would have been available to the plaintiff under his claim of a denial of visitation rights. Whether the plaintiff was entitled to such relief is the single issue for determination on this appeal.
To understand this issue of the plaintiff’s right to visitation privileges, it is necessary to sketch the facts in this case. The plaintiff Buie is a convicted prisoner serving not a short sentence but a sentence of life imprisonment plus ten years imposed following his conviction of first degree burglary and felonious larceny. For purposes of service of his sentences, he has been committed by the North Carolina Department of Corrections to a State prison facility, the Odom Prison Unit, where, except for a short period in early 1980, he has been continuously confined since his conviction on October 7, 1977. His confinement in the Cumberland County Jail, about which he complains, is limited to two brief periods. Between his arrest in April, 1977 and his conviction on October 7, 1977, Buie had been confined as a pretrial detainee in the Cumberland County Jail for a period of about forty-odd days. In late March, 1980, Buie as a convicted prisoner was returned from Odom Prison Unit to the Cumberland County Jail for two temporary periods, one of about twenty-eight days and the other for about eight days, to enable him to participate in other litigation apparently in Cumberland County. It was on the last day of his presence at the Cumberland County Jail that Buie filed this § 1983 action.
The plaintiff as a convicted prisoner under a life sentence plus a ten year additional sentence, is permanently assigned to a regular State prison installation under the control and supervision of the North Carolina Department of Corrections, the Odom Prison Unit. He has not been confined to the Cumberland County Jail since May, 1980 and, as a convicted prisoner under a life sentence plus, cannot reasonably be expected within the foreseeable future to be transferred back to the Cumberland County Jail which is primarily a place of confinement for pretrial detainees. Under those circumstances, any claim of Buie for injunctive or declaratory relief against the officials of the Cumberland County Jail would appear to be moot under the authorities of this Circuit. Inmates v. Owens, 561 F.2d 560 (4th Cir.1977), it would appear, is conclusive on this point.
In that case, the plaintiffs, like Buie, sought injunctive and declaratory relief with reference to conditions in the Portsmouth county jail while they were confined as pretrial detainees in such installation. The District Court dismissed “the suit because the complainants had not alleged that they, themselves, suffered from any of” the conditions of confinement complained of. An appeal followed. While that appeal was pending “all nine inmates who originally signed the complaint [were] released from the Portsmouth jail.” In the interim between that release and the hearing on appeal, one of the original plaintiffs was rearrested and presumably was placed in the Portsmouth jail. We nonetheless dismissed the appeal as moot. In so doing, we were not deterred by the fact that one of the original plaintiffs had been rearrested from holding that, in the absence of proof that the rearrested plaintiff was “again being subjected to the alleged constitutional deprivations specified in the complaint since his rearrest,” at the jail, the claim of “capable of repetition” was insufficient to provide a “safeharbor” against a finding of mootness. 501 F.2d at 562, n. 2. That ease is accordingly direct authority for the dismissal of this action for mootness.
There is, however, a more compelling reason for the dismissal of Buie’s claim to declaratory and injunctive relief than mootness. It is a reason grounded in constitutional principles as declared in City of Los Angeles v. Lyons, — U.S. —, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In that case, the plaintiff sought damages and in-junctive and declaratory relief because the city officers, stopping the plaintiff for a traffic violation, had allegedly, without provocation or justification subjected him to an excessive “chokehold” which rendered him unconscious and inflicted damage to his larynx. It was the plaintiff’s contention that a “chokehold,” administered under such circumstances, was a violation of his constitutional rights. While the case was pending on appeal in the Supreme Court, the Board of Police Commissioners “imposed a six-month moratorium on the use of the carotid-artery chokehold except under circumstances where deadly force is authorized.” At that point, the defendant City filed a Memorandum Suggesting a Question of Mootness, and attached a motion to dismiss the writ of certiorari as improvidently granted. The Supreme Court denied the motion “but reserved the question of mootness for later consideration.” After hearing, the Court ruled that the case was “not moot, since the moratorium, by its terms is not permanent.” However, the Supreme Court proceeded to hold, on constitutional grounds, that “the federal courts are without jurisdiction to entertain Lyons’ claim for injunctive relief” on another ground.
In explication of this other ground, the Court in that case declared that “those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” It then defined “an actual case or controversy” to be one in which the plaintiff “must demonstrate a ‘personal stake in the outcome’ in order to ‘assure that concrete adverseness which sharpens the presentation of issues’ necessary for the proper resolution of constitutional questions.” It is not enough, the Court added, that the plaintiff “ ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct,” rather, “the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” Moreover, as it further explained, “ ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding in-junctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” It then addressed the possible contention that the constitutional infringement was within the “capable of repetition yet evading review” exception. The establishment of such exception in the standing context, the Court said “depended on whether [the plaintiff] was likely to suffer future injury from the use of the chokeholds by police officers,” adding by way of further explanation:
“If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October, 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.”
It went on to state that, while Lyons alleged that it was “routine” for the Los Angeles Police to subject any person stopped for a traffic violation to the challenged chokehold, that fact “does nothing to establish a real and immediate threat that [the plaintiff] would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.” Finding in the case no “real and immediate threat” of repetition, the Supreme Court ordered dismissal of the claim for injunctive and declaratory relief.
It follows from Lyons that, in order to invoke the defense of “capable of repetition” to a claim of mootness, it is necessary that there be a “realistic threat,” a “real and immediate threat,” of repetition and the burden of establishing or demonstrating that fact rests with him who asserts that defense. If that be the true rule, it cannot reasonably be said in this case that there is any reasonable probability that within the foreseeable “immediate” future Buie, who is confined under a life plus sentence, is going again to be arrested in Cumberland County and confined as a pretrial detainee in the Cumberland County Jail. He is not like the plaintiffs in Owens who were quickly released or the plaintiff in Lyons, who similarly was released. There is no suggestion that Buie has any “immediate” prospects of release. In short, Buie is without any “ ‘personal stake in the outcome’ ” of this attack on the visitation rules at the Cumberland County Jail and there is no “realistic” basis for assuming that he will be harmed or benefited by a decision on such visitation rights. He manifestly lacks standing both under Lyons and under Valley Forge College v. American United, 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982) (in this case the Supreme Court said that for a plaintiff to have standing, the right he asserts must be one that “ ‘is likely to be redressed by a favorable decision’ ”).
Accordingly the plaintiff has no standing to assert a claim for injunctive and declaratory relief in connection with any denial of an alleged privilege of visitation rights as a pretrial detainee; in addition, such claim is moot.
For the foregoing reasons the judgment of the district court is
AFFIRMED.
. The Cumberland County Jail is under the custody of the County Sheriff and is not “a permanent housing facility for prisoners who have been convicted of crime” under the control of the North Carolina Department of Corrections, but is “a ‘hold-over’ facility in which prisoners are held for a relatively short period of time prior to trial and then, following trial and sentencing, are transported immediately to a more permanent facility where increased facilities are available.”
. The period of Buie’s confinement as a pretrial detainee at the Cumberland County Jail began on April 12, 1977, was interrupted by Buie’s transfer to the Dorothea Dix Hospital from April 22, resumed on May 12 and continued until June 13 when he was released on bond, and finally resumed on October 4, 1977, with the commencement of his trial and ended on October 7 with his conviction and transfer to Odom Prison Unit.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Which specific substate government agency best describes this litigant?
A. Police, Sheriff
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election Processes
H. Education - Not School Board
I. Other Service Activity
J. not ascertained
Answer:
|
songer_appel1_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Wilbur O. MORTON, Appellant, v. UNITED STATES of America, et al., and the State of Kansas et al., Appellees.
No. 8711.
United States Court of Appeals Tenth Circuit.
Aug. 4, 1966.
Alex T. Collins, III, for appellant.
William E. Gandy, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty. for District of Colorado, David I. Shedroff, Asst. U. S. Atty. for District of Colorado, on the brief), for appellees.
Before PHILLIPS, JONES and SETH, United States Circuit Judges.
Of the Fifth Circuit, setting by designation.
PER CURIAM.
The judgment of the district court is correct and is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
FEDERAL TRADE COMMISSION v. FRED MEYER, INC., et al.
No. 27.
Argued November 6, 1967.
Decided March 18, 1968.
Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Francis X. Beytagh, Jr., James Mcl. Henderson and E. K. Elkins.
Edward F. Howrey argued the cause for respondents. With him on the brief were Terrence C. Sheehy and George W. Mead.
Morris B. Ahram filed a brief for the Atlantic Coast Independent Distributors Association, Inc., as amicus curiae, urging reversal.
Gilbert H. Weil filed a brief for Clairol Incorporated, as amicus curiae, urging affirmance.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The Federal Trade Commission, after extensive proceedings, ruled that respondents, the corporate owner of a chain of supermarkets and two of its officers, had unlawfully induced certain suppliers to engage in discriminatory pricing and sales promotional activities prohibited by §§ 2 (a) and 2 (d) of the Clayton Act, as amended by the Robinson-Patman Act. 63 F. T. C.-(1963). The Court of Appeals for the Ninth Circuit disagreed with the Commission’s construction of § 2 (d) and reversed in part its ruling that the section had been violated. 359 F. 2d 351 (1966). We granted certiorari, 386 U. S. 907 (1967), because the case presents important questions concerning the scope of a key provision of the Robinson-Patman Act.
I.
Section 2 (d) makes it unlawful for a supplier'in interstate commerce to grant advertising or other sales promotional allowances to one “customer” who resells the supplier’s “products or commodities” unless the allowances are “available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.” Although we have limited our review of this case to one aspect of the alleged § 2 (d) violations, full understanding of the issues requires a brief exposition of the facts from which the Commission concluded that respondents had induced violations of both §§ 2 (a) and 2 (d). The relevant facts found by the Commission were not disturbed by the Court of Appeals.
Respondent Fred Meyer, Inc., operates a chain of 13 supermarkets in the Portland, Oregon, area which engage in the retail sale of groceries, drugs, variety items, and a limited line of clothing. In 1957 Meyer’s sales exceeded $40,000,000. According to its 1960 prospectus, it made one-fourth of the retail food sales in the Portland area and was the second largest seller of all goods in that area. Since 1936 Meyer has conducted annually a four-week promotional campaign in its stores based on the distribution of coupon books to consumers. The books usually contain 72 pages, each page featuring a single product being sold by Meyer at a reduced price. The consumer buys the book for the nominal sum of 10$ and must surrender the appropriate coupon when making his purchase of goods. A coupon often represents a reduction of one-third or more from Meyer’s regular price for the featured item, and the cover of the 1957 book stated that the use of all 72 coupons would result in total savings of more than $54. The promotional campaign is highly successful. Meyer sold 138,700 books in 1957 and 121,270 in 1958. Aside from the nominal 100 paid by consumers for the coupon books, Meyer finances the promotion by charging the supplier of each featured product a fee of at least $350 for each coupon-page advertising his product. Some participating suppliers further underwrite the promotion by giving Meyer price reductions on its purchases of featured items, by replacing at no cost a percentage of the goods sold by Meyer during the campaign, or by redeeming coupons in cash at an agreed rate.
The Commission concluded that this promotional scheme, as conducted in the years 1956 through 1958, violated §§ 2 (d) and 2(a) in the following respects: First, the $350 paid to Meyer by each of four suppliers participating in the campaigns represented promotional allowances paid in violation of § 2 (d) because similar allowances were not made available on proportionally equal terms to competing customers. Second, the additional value given Meyer by these suppliers in the form of discounts, free replacements of goods sold and coupon redemptions amounted to price discrimination prohibited by § 2 (a). The Commission held that by inducing the suppliers to discriminate in price, respondents had violated § 2 (f) of the Act, and that by inducing them to grant discriminatory promotional allowances, respondents had engaged in an unfair method of competition in violation of § 5 (a) of the Federal Trade Commission Act.
Both before the Commission and in the Court of Appeals, respondents argued that it was not established that two participating suppliers, Tri-Valley Packing Association and Idaho Canning Company, had violated § 2 (d). Meyer purchased directly from both of these suppliers. Tri-Valley participated in the 1957 promotion by paying Meyer $350 for a coupon-page featuring Tri-Valley’s brand of canned peaches and by replacing in merchandise every third can sold by Meyer on the coupon’s offer of three cans for the price of two. Idaho Canning participated in the 1957 promotion on substantially identical terms, except that the coupon-page it purchased offered three cans of corn for the price of two. The Commission found that two wholesalers, Hudson House and Wadhams & Co., both of which resold to Meyer’s retail competitors, had been disfavored in these transactions in that Hudson House had purchased canned peaches from Tri-Valley and both Hudson House and Wadhams had purchased canned corn from Idaho Can-rung, but neither of the two wholesalers had been accorded promotional allowances comparable to those received by Meyer. Respondents argued that, purely as a matter of statutory construction, Tri-Valley and Idaho Canning could not have violated the requirement of proportional equality among “customers competing in the distribution” of their products because (1) Meyer, a retailer, was not “competing” in the distribution of canned corn and peaches with the disfavored wholesalers, Hudson House and Wadhams, and (2) the retailers found by the Commission to be competing with Meyer in the resale of these products were not “customers” of TriValley and Idaho Canning but were customers of Hudson House and Wadhams.
The Commission rejected this reading of § 2 (d), noting that, if respondents’ view prevailed, a retailer buying from a wholesaler and having no direct dealings with his supplier would receive no protection against discriminatory promotional allowances given his competitor who purchased directly from the supplier. The Commission held that § 2 (d) prohibits a supplier from granting promotional allowances to a direct-buying retailer, such as Meyer, unless the allowances are also made available to wholesalers who purchase from the supplier and resell to the direct-buying retailer’s competitors. Accordingly, the Commission’s cease-and-desist order included a provision barring respondents from inducing suppliers to grant them promotional allowances not available to “customers who resell to purchasers who compete with respondents in the resale of such supplier’s products.” 63 F. T. C., at • — . One Commissioner, while agreeing with the majority that respondents had induced TriValley and Idaho Canning to violate § 2 (d), dissented in part on the ground that the order should have required the promotional allowances to be made available to the retailers competing with Meyer rather than to wholesalers who resold to them. Thus, in his view, the competing retailers were “customers” of Tri-Valley and Idaho Canning within the meaning of the statute. The Court of Appeals adopted the interpretation of § 2 (d) urged by respondents. Consequently, it set aside the portion of the Commission’s order set out above.
We agree with the Commission that the proscription of § 2 (d) reaches the kind of discriminatory promotional allowances granted Meyer by Tri-Valley and Idaho Canning. Therefore, we reverse the judgment of the Court of Appeals on this point. However, because we have concluded that Meyer’s retail competitors, rather than the two wholesalers, were competing customers under the statute, we also remand the case for appropriate modification of the Commission’s order. We deal first with respondents’ arguments, second with the opinion of the Court of Appeals, and third with the Commission’s order.
II.
Respondents press upon us a view of § 2 (d) which leaves retailers who buy from wholesalers for the most part unprotected from discriminatory promotional allowances granted their direct-buying competitors. We are told that § 2 (d) in specific terms requires this result. To benefit from the statute’s requirement of proportional equality, it is urged, a buyer must be a “competing customer” within the narrowest sense of that phrase. Thus, the wholesalers in this case are not competing customers because they do not compete with Meyer, and the retailers who do compete with Meyer in the resale of the suppliers’ products are outside the protection of § 2 (d) because they are not customers of the suppliers. For reasons stated below, we agree with respondents that, on the facts of this case, § 2 (d) reaches only discrimination between customers competing for resales at the same functional level and, therefore, does not mandate proportional equality between Meyer and the two wholesalers. But we cannot accept the second half of this argument, for it rests on a narrow definition of “customer” which becomes wholly untenable when viewed in light of the central purpose of § 2 (d) and the economic realities with which its framers were concerned.
Conceding that the Robinson-Patman amendments by no means represent an exemplar of legislative clarity, we cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate. See, e. g., FTC v. Sun Oil Co., 371 U. S. 505, 516-521 (1963); Elizabeth Arden Sales Corp. v. Gus Blass Co., 150 F. 2d 988, 991-993 (C. A. 8th Cir.), cert. denied, 326 U. S. 773 (1945). We start with the proposition that “[t]he Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.” FTC v. Henry Broch & Co., 363 U. S. 166, 168 (1960). The role within the statutory scheme which Congress intended for § 2 (d) is well documented in the legislative history. An investigation of chain store buying practices undertaken by the Federal Trade Commission, at Congress’ request, had indicated that § 2 of the Clayton Act was an inadequate deterrent against outright price discrimination. The investigation also revealed that certain practices by which large buyers induced concessions which their smaller competitors could not obtain were wholly beyond the reach of § 2. It is significant that congressional concern had focused on the buying practices of large retailers, particularly the chain stores, because it was felt that they were threatening the continued existence of the independent merchant. Indeed, before Congress acted, some States had attempted to limit the growth of retail chains through express prohibitions against further extensions and through taxation. One of the practices disclosed by the Commission’s investigation was that by which large retailers induced concessions from suppliers in the form of advertising and other sales promotional allowances. The draftsman of the provision which eventually emerged as § 2 (d) explained that, even when such payments were made for actual sales promotional services, they were a form of indirect price discrimination because the recipient of the allowances could shift part of his advertising costs to his supplier while his disfavored competitor could not. That Congress adopted this view of the practice it sought to eliminate by § 2 (d) is demonstrated by the words used by the Senate Judiciary Committee in recommending enactment of the section:
“Still another favored medium for the granting of oppressive discriminations is found in the practice of large buyer customers to demand, and of their sellers to grant, special allowances in purported payment of advertising and other sales promotional services, which the customer agrees to render with reference to the seller's products, or sometimes with reference to his business generally. Such an allowance becomes unjust when the service is not rendered as agreed and paid for, or when, if rendered, the payment is grossly in excess of its value, or when in any case the customer is deriving from it equal benefit to his own business and is thus enabled to shift to his vendor substantial portions of his own advertising cost, while his smaller competitor, unable to command such allowances, cannot do so.”
Congress chose to deter such indirect price discrimination by prohibiting the granting of sales promotional allowances to one customer unless accorded on proportionally equal terms to all competing customers.
Of course, neither the Committee Report nor other parts of the legislative history in so many words define “custome/^ to include retailers who purchase through wholesalers and compete with direct buyers in resales. But a narrower reading of § 2 (d) would lead to the following anomalous result. On the one hand, direct-buying retailers like Meyer, who resell large quantities of their suppliers’ products and therefore find it feasible to undertake the traditional wholesaling functions for themselves, would be protected by the provision from the granting of discriminatory promotional allowances to their direct-buying competitors. On the other hand, smaller retailers whose only access to suppliers is through independent wholesalers would not be entitled to this protection. Such a result would be diametrically opposed to Congress’ clearly stated intent to improve the competitive position of small retailers by eliminating what was regarded as an abusive form of discrimination. If we were to read “customer” as excluding retailers who buy through wholesalers and compete with direct buyers, we would frustrate the purpose of § 2 (d). We effectuate it by holding that the section includes such competing retailers within the protected class.
III.
The Commission did not press in the Court of Appeals the position of one Commissioner that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were customers of Tri-Valley and Idaho Canning. Consequently, that court gave almost no consideration to the construction of § 2 (d) which we hold to be the proper one. Citing its prior ruling in Tri-Valley Packing Assn. v. FTC, 329 F. 2d 694, 709-710 (C. A. 9th Cir. 1964), the court merely stated that a § 2 (d) violation could not be made out unless (1) Tri-Valley and Idaho Canning had in some way dealt directly with retailers competing with Meyer, and (2) canned peaches and corn sold by the two suppliers could be traced through Hudson House and Wad-hams to the shelves of the competing retailers. 359 F. 2d, at 359-360, 362-363. In the view of the Court of Appeals, these two requirements compose the elements of the “indirect customer” doctrine under which the Commission and the courts impose § 2 (d) liability when a supplier in effect supplants his intermediate distributors in dealings with those to whom the distributors resell and favors some of the distributors’ accounts over others. See American News Co. v. FTC, 300 F. 2d 104, 109 (C. A. 2d Cir.), cert. denied, 371 U. S. 824 (1962); K. S. Corp. v. Chemstrand Corp., 198 F. Supp. 310, 312-313 (D. C. S. D. N. Y. 1961); Kay Windsor Frocks, Inc., 51 F. T. C. 89, 95-96 (1954); F. Rowe, Price Discrimination Under the Robinson-Patman Act 398-399 (1962), 90 (1964 Supp.). We need not and do not question the validity of this doctrine as applied to pierce a supplier’s unrealistic claim that a reseller favored by him is actually the customer of an intermediate distributor. Nor do we reach the question whether a retailer may succeed in a private action based on § 2 (d) without proving that he in fact resold the supplier’s product in competition with a favored buyer. In the case before us, it is conceded that Meyer was a customer of Tri-Valley and Idaho Canning. Moreover, as indicated by its approval of the Commission’s § 2 (a) ruling, the Court of Appeals did not question the Commission’s finding that Meyer competed in the resale of Tri-Valley and Idaho Canning products with retailers who purchased through Hudson House and Wadhams. Given these findings, it was unnecessary for the Commission to resort to the indirect customer doctrine. Whether suppliers deal directly with disfavored competitors or not, they can, and here did, afford a direct buyer the kind of competitive advantage which § 2 (d) was intended to eliminate. In light of our holding that “customers” in § 2 (d) includes retailers who buy through wholesalers and compete with a direct buyer in the resale of the supplier’s product, the requirement of direct dealing between the supplier and disfavored competitors imposed by the Court of Appeals rests on too narrow a reading of the statute. Further, in light of the Commission’s finding that Meyer competed in the resale of the Idaho Canning and Tri-Valley products with other retailers in the area who purchased through Hudson House and Wadhams and in light of the fact that the Court of Appeals did not disturb this finding, the court misapprehended the Commission’s burden in requiring it to trace those products to the shelves of the disfavored retailers.
IV.
The Commission’s view of the impact of respondents’ argument in no way conflicts with our own. In rejecting respondents’ construction of § 2 (d), the Commission observed:
“The net result of this argument is that the entire structure of ‘independent’ food merchants — including the traditional wholesaler and his numerous, small retailer-customers — are placed completely outside the pale of Section 2 (d) of the amended Clayton Act insofar as their competition with the direct-buying 'chains’ is concerned.
“We are not persuaded that Congress either intended or effected any such result when it passed Section 2 (d). In the first place, such a construction goes squarely against the well-known purposes of the Act itself, namely, to give the ‘independent’ food sellers an even break in their competition with the ‘chains.’ ”
But rather than concluding, as we have, that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were 'disfavored customers of Tri-Valley and Idaho Canning, a majority of the Commission held that the wholesalers, Hudson House and Wadhams, were the customers entitled to promotional allowances on proportionally equal terms with Meyer. Although we approach the Commission’s ruling with the deference due the agency charged with day-today administration of the Act, we hold that, at least on the facts before us, § 2 (d) does not require proportional equality between Meyer and the two wholesalers.
The Commission believed it found support for its position in the language of § 2 (d) itself, which requires that promotional allowances be accorded on proportionally equal terms to “customers competing in the distribution” of a supplier’s product, rather than merely to customers competing in resales. The majority reasoned that Hudson House and Wadhams, when they resold to Meyer’s retail competitors, were competing with Meyer in the distribution of Tri-Valley and Idaho Canning products because the two wholesalers were “seeking exactly the same consumer dollars that respondents are after.” 63 F. T. C., at-. While it cannot be doubted that Congress reasonably could have employed such a broad concept of competition in § 2 (d), we do not believe that the use of the word “distribution” rather than “resale” is a clear indication that it did, and what discussion there was of the promotional allowance provision during the congressional hearings indicates that the section was meant to impose proportional equality only where buyers competed on the same functional level. Thus, in reporting the provision, both the Senate and House Judiciary Committees used the following example:
“To illustrate: Where, as was revealed in the hearings earlier referred to in this report, a manufacturer grants a particular chain distributor an advertising allowance of a stated amount per month per store in which the former’s goods are sold, a competing customer with a smaller number of stores, but equally able to furnish the same service per store, and under conditions of the same value to the seller, would be entitled to a similar allowance on that basis.”
This illustration and others which- could be cited are not conclusive, but they do strongly suggest that the competition with which Congress was concerned in § 2 (d) was that between buyers who competed in resales of the supplier’s products. And, as stated above, Congress’ objective was to assure that all sellers, regardless of size, competing directly for the same customers would receive even-handed treatment from their suppliers. We noted in FTC v. Sun Oil Co., 371 U. S. 505 (1963), that when Congress wished to expand the meaning of competition to include more than resellers operating on the same functional level, it knew how to do so in unmistakable terms. It did so in § 2 (a) of the Act by prohibiting price discrimination which may “injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.” Id., at 514 — 515; see FTC v. Morton Salt Co., 334 U. S. 37, 55 (1948). We stated in Sun Oil that:
“There is no reason appearing on the face of the statute to assume that Congress intended to invoke by omission in § 2 (b) the same broad meaning of competition or competitor which it explicitly provided by inclusion in § 2 (a); the reasonable inference is quite the contrary.”
In the present case, too, we think “the reasonable inference” is that Congress did not intend such a broad meaning of competition in§2(d). We recognize that it would be both inappropriate and unwise to attempt to formulate an all-embracing rule applying the elusive language of the section to every system of distribution a supplier might devise for getting his product to the consumer. But, on the concrete facts here presented, it is clear that the direct impact of Meyer’s receiving discriminatory promotional allowances is felt by the disfavored retailers with whom Meyer competes in resales. We cannot assume without a clear indication from Congress that § 2 (d) was intended to compel the supplier to pay the allowances to a reseller further up the distributive chain who might or might not pass them on to the level where the impact would be felt directly. We conclude that the most reasonable construction of § 2 (d) is one which places on the supplier the responsibility for making promotional allowances available to those resellers who compete directly with the favored buyer.
The Commission argues here that the view we take of § 2 (d) is impracticable because suppliers will not always find it feasible to bypass their wholesalers and grant promotional allowances directly to their numerous retail outlets. Our decision does not necessitate such bypassing. We hold only that, when a supplier gives allowances to a direct-buying retailer, he must also make them available on comparable terms to those who buy his products through wholesalers and compete with the direct buyer in resales. Nothing we have said bars a supplier, consistently with other provisions of the antitrust laws, from utilizing his wholesalers to distribute payments or administer a promotional program, so long as the supplier takes responsibility, under rules and guides promulgated by the Commission for the regulation of such practices, for seeing that the allowances are made available to all who compete in the resale of his product.
The judgment of the Court of Appeals, insofar as it held that the promotional allowances granted Meyer by Tri-Valley and Idaho Canning did not violate § 2 (d), is reversed. The case is remanded to the Court of Appeals with directions to remand to the Commission for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Marshall took no part in the consideration or decision of this case.
38 Stat. 730, as amended, 49 Stat. 1526, 1527, 15 U. S. C. §§ 13 (a), 13 (d). Section 2 (a) provides in pertinent part:
“[I]t shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be ... to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: . . .”
Section 2 (d) provides in full:
“[I]t shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.”
See n. 1, supra.
The Commission and respondents filed separate petitions for certiorari to review different rulings of the Court of Appeals. Respondents contended (1) that the Commission had failed to show that respondents’ inducement of §§ 2 (a) and 2 (d) violations had been knowing and (2) that the Commission’s order prohibiting future inducement of § 2 (d) violations was too broad. The Commission’s petition raised the question “[w]hether a supplier’s granting to a retailer who buys directly from it promotional allowances that are not made available to a wholesaler who resells to retailers competing with the direct-buying retailer violates Section 2 (d) of the Robinson-Patman Act.” The Commission also presented an additional question which it sought to reserve only if respondents’ petition were granted. We denied respondents’ petition, 386 U. S. 908 (1967), and specifically limited our review on the Commission’s petition to the issue of statutory interpretation therein presented. 386 ü. S. 907 (1967).
The Commission found that the total of $25,200 received by-Meyer from 72 participating suppliers in each of the years 1956 and 1957 more than covered Meyer’s cost of publishing, distributing, and publicizing the coupon books in those years. The Commission characterized as “clear profit” the $13,870 paid Meyer by consumer purchasers of the books in 1957.
See n. 1, supra.
15 U. S. C. § 13 (f):
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.”
38 Stat. 719, as amended, 66 Stat. 632, 15 U. S. C. § 45 (a):
“(1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.
“(6) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.”
63 F. T. C., at — (Commissioner Elman, concurring in part and dissenting in part).
This case, in its present posture, does not present the question whether the functional label used by a manufacturer or reseller reflects his actual position in the distributive chain. Compare FTC v. Ruberoid Co., 343 U. S. 470, 475 (1952); cf. FTC v. Simplicity Pattern Co., 360 U. S. 55, 62-63 (1959).
Automatic Canteen Co. v. FTC, 346 U. S. 61, 65 (1953); see F. Rowe, Price Discrimination Under the Robinson-Patman Act 20 (1962).
S. Res. No. 224, 70th Cong., 1st Sess., 69 Cong. Rec. 7857 (1928).
Federal Trade Commission, Final Report on the Chain-Store Investigation, S. Doc. No. 4, 74th Cong., 1st Sess., 63-65, 90-91, 96-97 (1935).
Id., at 57-65. See also Hearings before the Special House Committee on Investigation of American Retail Federation, 74th Cong., 1st Sess. (1935).
See C. Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 6-11 (2d rev. ed. 1959). In presenting his bill to the House Judiciary Committee, Representative Patman stated:
“I believe it is the opinion of everyone who has studied this subject, that the day of the independent merchant is gone unless something is done and done quickly. He cannot possibly survive under that system. So we have reached the crossroads; we must either turn the food and grocery business of this . . . country over to a few corporate chains, or we have got to pass laws that will give the people, who built this country in time of peace and who saved it in time of war, an opportunity to exist — not to give them any special rights, special privileges, or special benefits, but just to deny their competitors the special benefits that they are getting, that they should not be permitted to have.” Hearings on H. R. 8442, 4995, and 5062 before the House Committee on the Judiciary, 74th Cong., 1st Sess., 5-6 (1935).
See Federal Trade Commission, Final Report on the Chain-Store Investigation, supra, n. 12, at 78-82.
Id., at 44-46, 61. See also Hearings before the Special House Committee on Investigation of American Retail Federation, 74th Cong., 1st Sess., Vol. 3, No. 1, at 66-88 (1935).
Hearings on Bills to Amend the Clayton Act before a Subcommittee of the House Committee on the Judiciary, 74th Cong., 2d Sess., 464 (1936) (Mr. Teegarden).
S. Rep. No. 1502, 74th Cong., 2d Sess., 7 (1936). The House Judiciary Committee reported the provision favorably in identical terms. H. R. Rep. No. 2287, 74th Cong., 2d Sess., 15-16 (1936).
The Commission’s § 2 (a) and § 2 (d) rulings were both based on findings that retailers in the Portland area who purchased through Hudson House and Wadhams competed with Meyer in the resale of Idaho Canning com and Tri-Valley peaches. The Court of Appeals could not have consistently set aside these findings with regard to the § 2 (d) violations while upholding them with respect to § 2 (a).
63 F. T. C., at —.
S. Rep. No. 1502, 74th Cong., 2d Sess., 8 (1936); H. R. Rep. No. 2287, 74th Cong., 2d Sess., 16 (1936).
See n. 14, supra.
371 U. S., at 515.
See 16 CFR §§ 1.55-1.66; of. “Guides for Allowances and Services,” 1 CCH Trade Reg. Rep. ¶ 3980, at 6073-6079.
See, e. g., F. Rowe, Price Discrimination Under the Robinson-Patman Act 534; Stedman, Twenty-four Years of the Robinson-Patman Act, 1960 Wis. L. Rev. 197, 218.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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songer_origin
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
MORTGAGE ASSOCIATES, INC., Plaintiff-Appellant, v. Max CLELAND, Administrator of Veterans’ Affairs, Defendant-Appellee.
No. 80-2152.
United States Court of Appeals, Seventh Circuit.
Argued April 1, 1981.
Decided July 2, 1981.
David S. Kreisman, Oak Brook, 111., for plaintiff-appellant.
Edward Moran, Asst. U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Chief, Civ. Div., Chicago, 111., for defendant-appellee.
Before CUMMINGS, Circuit Judge, GIBSON, Senior Circuit Judge, and CUDAHY, Circuit Judge.
The Honorable Floyd R. Gibson, Senior Circuit Judge of the Eighth Federal Circuit, is sitting by designation.
PER CURIAM.
Plaintiff Mortgage Associates, Inc. appeals from a district court order granting summary judgment to defendant, the Administrator of Veterans’ Affairs, on plaintiff’s claim to recover on a loan guaranty contract executed under the Veterans’ Home Loan Guaranty Program (38 U.S.C. §§ 1801-1827). 494 F.Supp. 683. We reverse.
I
According to those allegations of the complaint admitted in defendant’s answer, plaintiff on November' 4, 1974, received from veteran Benjamin L. Swanson and his wife Roberta a mortgage note for $21,200 and a mortgage securing the note. The mortgage was a first lien on the Swansons’ residence at 1305 Franklin Avenue, Winthrop Harbor, Illinois. A month thereafter, defendant issued plaintiff a Loan Guaranty Certificate under 38 U.S.C. § 1803. This Certificate guaranteed 58.96% of the $21,-200 indebtedness, and in reliance on the Guaranty, plaintiff advanced the Swansons $21,200 to purchase the Winthrop Harbor real estate.
The complaint also shows that plaintiff filed a complaint to foreclose the mortgage in Lake County, Illinois, Circuit Court on June 14, 1977, and that a decree of foreclosure and sale was entered on August 23, 1977. Pursuant thereto, plaintiff caused the premises to be scheduled for sale to the highest cash bidder on September 26, 1977. Plaintiff notified the Veterans’ Administration of the scheduled sale and awaited its written specification of the amount to be bid by plaintiff which, if plaintiff was the successful bidder, would be credited to the Swansons’ indebtedness to plaintiff under a Veterans’ Administration regulation and Handbook.
Instead of complying with its Lender’s Handbook (n. 1 supra), the Veterans’ Administration on September 22, 1977, orally advised a secretary employed by the Chicago law firm representing plaintiff to have the firm make a $17,650 bid at the September 26th foreclosure sale. A day after the projected sale, defendant wrote plaintiff to bid that amount. The letter was allegedly received by plaintiff in its Milwaukee, Wisconsin, office on September 30, 1977.
At the sale at the Lake County Circuit Court plaintiff successfully bid $24,617.54, the full indebtedness, instead of $17,650, “through inadvertence, mistake or clerical error.” The $24,671.54 amount was mistakenly typed by a secretary in the documents used by the law firm’s associate when bidding at the foreclosure sale. Thereafter plaintiff notified defendant that it wished to convey the property to defendant by assignment of the certificate of sale. But when defendant learned that plaintiff was the successful bidder for the property at $24,617.54, defendant refused to accept plaintiff’s election to sell the property to him for $17,650, denied its claim under the Loan Guaranty, and credited the indebtedness with the $24,617.54, thus wiping out the amount still owed plaintiff on the Loan Guaranty.
In October 1977, the same Lake County court, at plaintiff’s request, ordered that the September 26, 1977, judicial sale and order approving it be “vacated and held for naught” and that plaintiff be allowed to proceed with another judicial sale. On November 21, 1977, plaintiff became the successful bidder for $17,650, the amount previously specified by defendant. The second judicial sale was approved by judicial order, with distribution entered.
Even though defendant suffered no harm or prejudice through the correction of the error, it refused to honor plaintiff’s then $7,212.70 claim under the Loan Guaranty but ultimately accepted the property for $17,650, which was paid to plaintiff on June 26, 1978 (App. 32, 81-87). Consequently, plaintiff initiated this action in January 1979, seeking $8,143.90 with interest under defendant’s Loan Guaranty, plus reasonable attorney’s fees and costs.
After defendant answered the complaint, plaintiff filed a motion for summary judgment supported by affidavits and exhibits. Thereafter the defendant filed his motion for summary judgment (also supported by affidavits and exhibits), claiming that the first judicial sale discharged the debt of the veteran and relieved the Veterans’ Administration of any liability under the Loan Guaranty, and that if it were now required to honor the Guaranty it would have to attempt to proceed against the veteran. The district judge entered a pretrial order which included a statement of all uncontested facts. This statement showed that if the correct sale bid had been made on September 26, 1977, or if that sale had been continued to November 21, 1977, the plaintiff would have been entitled to $8,143.90, the amount sought in the complaint, plus interest, costs and reasonable attorney’s fees.
On June 12,1980, the district court filed a Memorandum Opinion granting defendant’s motion for summary judgment and denying plaintiff’s motion for summary judgment. The controlling regulatory scheme was succinctly described in the Memorandum Opinion as follows:
“Under the regulatory scheme of the Veterans’ Home Loan Program, when an amount is specified by the Administrator, that amount is the minimum amount which the Administrator will credit to the veteran’s indebtedness. 38 C.F.R. § 36.-4320. If the lender bids the specified amount at the sale and is the successful bidder, he shall have the option to convey the property to the Administrator. If the property is sold for an amount in excess of the amount specified, the sale price shall be credited to the veteran’s indebtedness, and if the lender is the successful bidder he shall not have the option to convey the property to the Administrator. In this manner, the regulations seek to protect the interests of the veteran, the Administrator, and the lender.”
When, as here, the mortgagee is the successful bidder for the specified amount, it can retain the security for the specified amount or, as here, elect to convey the security to the Administrator for the specified amount and receive from the Administrator the difference between that amount and the total guaranteed debt (App. 22).
Judge Marovitz observed that under the applicable regulations the Veterans’ Administrator is not required to specify the minimum amount to be credited to a veteran’s indebtedness as a result of a foreclosure sale, but that under the Veterans’ Administration Lender’s Handbook, the Administrator, upon receipt of timely notice of a foreclosure sale, which was concededly given here, “shall notify the lender in writing either of the amount specified or that no amount will be specified.” As the court noted, the Administrator admittedly did not follow this provision of his Lender’s Handbook. If defendant had complied with the requirement in Paragraph 7073 of his Lender’s Handbook and sent plaintiff the required written notice of the specified amount to be bid, this error would almost surely have been avoided. Indeed defendant’s Director of Loan Guaranty Services criticized defendant’s Chicago office for not having given notice of the amount specified for the first sale directly to plaintiff and for not having confirmed the September 22 telephone conversation amount specified to plaintiff’s Chicago law firm’s secretary “immediately by registered letter or telegraph to the holder and its attorneys (See M26-4 paragraph 2.19a)” (App. 81). The court correctly concluded that by publishing the Handbook and encouraging firms like plaintiff to rely upon it, the Administrator had become bound by its provisions. However, because plaintiff admitted that its bid at the first sale was also caused by the legal secretary’s negligence, the court refused to upset the Administrator’s decision to declare his and plaintiff’s rights fixed according to the terms of the first sale. Therefore the Administrator’s motion for summary judgment was granted. This appeal followed.
II
38 U.S.C. § 1816 is applicable to this case and provides that in the event of a default in the payment of a loan guaranteed by the Veterans’ Administration, the holder of the obligation is to notify the Administrator “who shall thereupon pay to such holder the guaranty not in excess of the pro rata portion of the amount originally guaranteed.” As the Supreme Court stated in United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554,1561, 6 L.Ed.2d 908, “Congress intended the guaranty provision to operate as the substantial equivalent of a down payment in the same amount by the veteran on the purchase price, in order to induce prospective mortgagee-creditors [like plaintiff] to provide 100% financing for a veteran’s home.” The guaranty is considered the equivalent of a down payment because in the event of a default the lender can look to the loan guaranty to avoid or limit the loss. As Shimer construed the statute, the mortgagee can demand to have the amount of guaranty applied against its unpaid claim “on the date of default” (367 U.S. at 378, 81 S.Ct. at 1558). The Court added that the Administrator’s regulations are a reasonable accommodation of the statutory ends “first, of making a federal guarantee the substantial equivalent of a down payment, and, second, of protecting both the Veterans’ Administration and the veteran from unnecessary loss on a foreclosure sale” (367 U.S. at 385, 81 S.Ct. at 1562). Here the plaintiff holder of the Loan Guaranty Certificate was unfairly denied the “substantial equivalent of a down payment” because of an inadvertent error in the first Illinois foreclosure sale which was corrected pursuant to Ill.Rev.Stats. (1979) ch. 110, § 50(5).
On September 27, the Veterans’ Administration belatedly specified to plaintiff in writing that in connection with the foreclosure sale of the Winthrop Harbor property, the “Administrator requires that there be credited to the indebtedness as the specified amount $17,650.00” (App. 21). Under 36 C.F.R. § 36.4320(a), this specification becomes “the minimum amount which should be credited to the indebtedness of the borrower on account of the value of the security to be sold.” And under 38 C.F.R. § 36.4323(e), the Veterans’ Administrator is then relegated to indemnification from the veteran. As Shimer establishes, the regulations of the Veterans’ Administration “were intended to create a uniform system for determining the Administration’s obligation as guarantor, which in its option would displace state law” (367 U.S. at 377, 81 S.Ct. at 1557), so that defendant cannot resort to Illinois law to support its claim that the first bid extinguished its guaranty obligation.
Defendant also argues that the parties’ rights were fixed by the first sale. However, the term “date of sale” is defined in 38 C.F.R. § 36.4320(i)(l) “as the date of the event [e. g. sale, confirmation of sale when required under local practice * * *] which fixes the rights of the parties in the property.” Because the first sale was vacated for mistake, the rights of these parties were derived from the results of the second sale. Indeed in June 1978 the Administrator purchased from plaintiff for $17,650 the Certificate of Sale issued in connection with the $17,650 second sale. Therefore it would be inequitable to let the Administrator reduce the indebtedness to plaintiff by $24,671.54, the amount bid at the first sale, instead of by the $17,650 it actually paid plaintiff. Defendant cannot successfully argue that under its Lender’s Handbook plaintiff had intended to acquire the property for its own use because even on the date of the first sale, plaintiff elected to convey the property to the Administrator.
To support its contention that the rights of the parties were fixed by the first sale, defendant cites its Manual M26-4 par. 3.12c, but that only covers a “first valid sale,” whereas here the first sale was decreed “held for naught.” In addition, that provision states “if circumstances warrant, in order to afford the holder the maximum relief permissible under the governing law, Central Office’s prior approval may be obtained to purchase the property pursuant to 38 U.S.C. § 1820 for the specified amount.” Here to avoid an inequitable windfall, the defendant should have permitted plaintiff to purchase the property at the November 21 sale for the $17,650 it specified in its tardy letter of September 27, and credited that amount against the indebtedness. In any event, Manual M26-4 is described by defendant as “an internal VA document” and therefore is not a regulation binding on lenders (Br. 12, n. 7).
Defendant also relies on his solicitor’s opinion No. 122-51 (1951) to support his argument that the rights of the parties were irrevocably fixed by the first sale. However, this opinion was not a part of the regulations or Lender’s Handbook, nor was it disseminated for general use to lenders. Furthermore, it does not harmonize with the Home Loan Guaranty Program which, as stated, was to provide the holder of a loan certificate guaranty the “substantial equivalent of a down payment” in order to induce lenders to participate in the program. United States v. Shimer, supra, at 374, 385, 81 S.Ct. at 1561-1562. Indeed, as Shimer determined, under the Veterans’ Home Loan Guaranty Program, the statute entitled a mortgagee to receive the amount of the guaranty on “demand to have applied against his unpaid claim on the default” 367 U.S. at 378, 81 S.Ct. at 1558; see also 38 U.S.C. § 1819. Congress intended that “there shall be credited against the unpaid debt at least what the Administrator regards as the fair value of the property.” 367 U.S. at 380, 81 S.Ct. at 1559. Here that was the $17,650 orally specified by defendant on September 22, so that it is immaterial as to defendant’s guaranty that plaintiff’s first bid exceeded that sum.
Since defendant accepted and derived benefits from the November 21, 1977 sale, plaintiff is entitled to recover its loan guaranty claim under the same sale. By virtue of our decision, the defendant will be in no different situation than if the initial sale had been done correctly. We are not invalidating any of defendant’s regulations or manuals but merely hold that they are partly inapplicable to this unique situation where defendant would otherwise be receiving a windfall from an inadvertent and non-prejudicial mistake.
The judgment of June 12, 1980, is reversed and remanded with directions to enter judgment in favor of plaintiff in the amount of $10,366.16 plus costs.
. The regulation specified was 38 C.F.R. § 4320 and the defendant’s Lender’s Handbook paragraph specified was 7073. The latter requires the defendant, after the mortgagee sends it an appropriate notice of sale, to write the mortgagee “the specified amount which shall be credited to the indebtedness of the borrower on account of the value of the security, or * * * that no amount will be specified” (Addendum E to plaintiffs brief).
. By January 31, 1980, this amount had escalated to $10,366.16 (App. 13), the amount ultimately sought in the court below (App. 1). The plaintiffs briefs in this Court do not request attorney’s fees and therefore that prayer in the complaint is held to be waived.
. Paragraphs 12 and 13 of the complaint, admitted in paragraphs 12 and 13 of defendant’s answer (App. 12, 24-25).
Although defendant contends that plaintiffs current arguments were not raised in the district court, our examination of plaintiffs memorandum of law filed below satisfies us that the issues raised before us by plaintiff are not truly new.
. If either party challenges this amount of damages, Judge Marovitz is directed to conduct a hearing on the amount of damages alone. The reply brief requests only $10,366.16 and costs.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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