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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
ROBERT LOUIS STEVENSON APARTMENTS, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 17701.
United States Court of Appeals Eighth Circuit.
Nov. 3, 1964.
Ronald M. Mankoff, of Durant, Mankoff & Davis, Dallas, Tex., made argument for petitioner and filed brief with Wentworth T. Durant and Robert Edwin Davis, of Durant, Mankoff & Davis, Dallas, Tex.
Lawrence B. Silver, Atty., Tax Div., Dept, of Justice, Washington, D. C., made argument for respondent and filed brief with Louis F. Oberdorfer, Asst. Atty. Gen., and Meyer Rothwacks and Gilbert E. Andrews, Attys., Tax Division, Dept, of Justice, Washington, D. C.
Before VOGEL, VAN OOSTERHOUT and MEHAFFY, Circuit Judges.
VOGEL, Circuit Judge.
By this petition for review Robert Louis Stevenson Apartments, Inc., seeks to have set aside a determination of the Tax Court that compensation paid to the corporation’s president and sole stockholder of $7,200 per annum was excessive and that $2,400 was a reasonable allowance therefor.
At the outset we are presented with a motion by the Commissioner asking that the petition for review be dismissed as not having been timely filed. We will consider that motion first.
26 U.S.C.A. § 7483 provides:
“The decision of the Tax Court may be reviewed by a United States Court of Appeals as provided in section 7482 if a petition for such review is filed by either the Secretary (or his delegate) or the taxpayer within 3 months after the decision is rendered. * * * ”
A petition filed subsequent to the expiration of the three-month period is unavailing and the Court of Appeals has no jurisdiction to review such determination. Lasky v. C. I. R., 9 Cir., 1956, 235 F.2d 97, affirmed 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598.
The facts upon which the Commissioner’s motion to dismiss is predicated are as follows:
On January 3, 1964, the Tax Court filed its Memorandum Findings and Conclusions in this ease. On January 6, 1964, three days later, the Tax Court entered its decision. On January 27, 1964, the taxpayer filed in the Tax Court a “Motion to Correct the Court’s Memorandum Findings of Fact and Opinion”. The motion sought to have stricken from the Tax Court’s Findings and Opinion the following statements:
1. “ * * * The record is indefinite and unclear as to which of the above businesses and properties Floy [Mrs. Randal] continued to own and operate during the year in issue and as to how much time she spent in connection with these endeavors.”
2, «* * * and especially the extent of Floy’s [Mrs. Randal’s] other activities and the rather inconsiderable amount of time which she spent in connection with petitioner’s affairs during the year in issue * * * ”
The Tax Court denied the motion to correct on February 3,1964. The instant petition for review of the Tax Court’s decision was filed on April 24, 1964. The Commissioner argues that inasmuch as more than three months had elapsed between January 6, 1964, the date of the decision, and April 24, 1964, the date of the filing of the petition for review, such petition was not timely.
Rule 19(e) of the Rules of Practice, Tax Court of the United States, 26 U.S.C.A., provides that motions “for retrial, further trial, or reconsideration” must be filed within thirty days after service of the opinion except by special leave. Rule 19(f) provides that motions “to vacate or revise a decision” must be filed within thirty days after the decision has been rendered except by special leave. The Commissioner points out that nothing was stated in the rules of the Tax Court with respect to the effect on the three-month period for filing petitions for review, of either a motion for reconsideration under Rule 19(e) or a motion to vacate under Rule 19 (f). Howevei*, he concedes that:
“ * * * By judicial decision, however, it has been established that motions which go to the decision, i. e. which seek to overturn the result reached by the Tax Court, will delay the running of the 3 month period. Griffiths v. Commissioner, 50 F.2d 782 (C.A. 7th) (rehearing); Burnet v. Lexington Ice & Coal Co., 62 F.2d 906 (C.A.4th) (vacate); Helvering v. Continental Oil Co. [63 App.D.C. 5], 68 F.2d 750 (C.A.D.C.), certiorari denied, 292 U.S. 627 [54 S.Ct. 629, 78 L.Ed. 1481] (rehearing).”
The Commissioner argues that the taxpayer’s motion “to Correct the Court’s Memorandum Findings of Fact and Opinion” does not fall within the “exceptions” which delay the running of the time for appeal because it did not “go to the decision” of the Tax Court. We believe the Commissioner is incorrect. As will be pointed out in the latter part of this opinion, if the taxpayer’s motion, whatever he chose to label it, had been granted, the decision of the Tax Court necessarily would have had to have been revised.
The Commissioner points out that if Tax Court proceedings were governed by the Federal Rules of Civil Procedure the taxpayer would be in no difficulty because Rule 73(a) expressly provides that the time for filing an appeal will run from the date of entry of an order granting or denying a motion to amend findings of fact “whether or not an alteration of the judgment would be required if the motion was granted”. We agree with the Commissioner that the Federal Rules of Civil Procedure do not apply to proceedings in the Tax Court. Lasky v. Commissioner, supra; Starr v. Commissioner, 7 Cir., 1955, 226 F.2d 721, 722, certiorari denied 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 859; Commissioner of Internal Revenue v. Licavoli, 6 Cir., 1958, 252 F.2d 268, 272; Katz v. Commissioner, 2 Cir., 1951, 188 F.2d 957, 959.
But under our view of this case it is immaterial whether the Federal Rules of Civil Procedure apply because we believe the taxpayer’s motion, if granted, would have necessitated a revision of the decision of the Tax Court.
In dealing with a similar problem but under what was then § 8(e) of the Act of February 13, 1925, C. 229, 43 Stat. 940, 28 U.S.C.A. § 230, the Supreme Court, in reversing the Ninth Circuit in Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, said beginning at page 204, 63 S.Ct. 543, at page 544, 87 L.Ed. 714:
“ * * * The Circuit Court of Appeals sua sponte held it had no jurisdiction because the appeal was taken more than three months after the entry of judgment, contrary to 28 U.S.C. § 230, 28 U.S.C.A. § 230. In so holding that court recognized the general rule that where a petition for rehearing, a motion for a new trial, or a motion to vacate, amend or modify a judgment is searsonably made and entertained, the time for appeal does not begin to run until the disposition of the motion. (Cases cited in f.n. 3 omitted here.) But this case was differentiated on the ground that the instant motion was not one to amend the judgment but merely one to amend and supplement the findings and conclusions. 9 Cir., 128 F.2d 204. * *
“We think that petitioner’s time to appeal did not begin to run until the disposition of his motion under Rule 52(b) on June 9, 1941, and accordingly that his appeal was timely. The motion was not addressed to mere matters of form but raised questions of substance since it sought reconsideration of certain basic findings of fact and the alteration of the conclusions of the court. In short the necessary effect was to ask that rights already adjudicated be altered. Consequently it deprived the judgment of that finality which is essential to appealability. Cf. Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118; Dept. of Banking, State of Nebraska v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254. It is immaterial that petitioner did not specifically request the amendment of the judgment, and the distinction based on this failure to request by the court below is artificial and untenable. If the motion had been granted and the requested amended and supplemental findings made, the judgment would have to be amended or altered to conform to those findings and the conclusions resulting from them.” (Emphasis supplied.)
In Saginaw Broadcasting Co. v. F. C. C., 1938, 68 App.D.C. 282, 96 F.2d 554, 558, certiorari denied 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391, the court said:
“In the Federal courts the rule is well established that in judicial proceedings the filing of a petition for rehearing, or of a motion for new trial, will suspend the running of the period within which an appeal may be taken, and that this period then begins to run anew from the date on which final action is taken on the petition or motion, whether it be denied or granted. The rule as above stated applies even though a statute fixes the time within which appeal may be taken as a definite period from the entry of judgment. (Citations omitted.)
“This rule has been applied by this court, as well as by other circuit courts of appeals, to proceedings before the Board of Tax Appeals. Helvering v. Continental Oil Co., 1933, 63 App.D.C. 5, 68 F.2d 750; Helvering v. Louis, 1935, 64 App.D.C. 263, 77 F.2d 386, 99 A.L.R. 620; Commissioner of Internal Revenue v. Lincoln-Boyle Ice Co., 7 Cir., 1937, 93 F.2d 26; Burnet v. Lexington Ice & Coal Co., 4 Cir., 1933, 62 F.2d 906; Griffiths v. Commissioner, 7 Cir., 1931, 50 F.2d 782. In these cases the pertinent sections of the Revenue Act provided that the decision of the Board might be reviewed on appeal ‘within six months after the decision is rendered’ and further, that ‘a decision * * * shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Board.’ In each case the appeal was taken more than six months after the order had been entered, but less than six months after the final decision of the Board upon a petition for rehearing. The courts held, nevertheless, that the appeals were timely.”
The statements sought to be stricken by the taxpayer’s motion in the instant case went to the core of the Tax Court’s conclusion. Had the motion been granted, it would have necessitated the Tax Court’s reversing its determination that petitioner was not entitled to pay Mrs. Floy Randal a salary of $7,200 per annum for it would have left that determination in mid air with no grounds for support except the presumption of correctness which attaches to the Commissioner’s determination. In Commissioner of Internal Revenue v. Lincoln-Boyle Ice Co., 7 Cir., 1937, 93 F.2d 26, 27-28, the court stated:
“ * * * So long as petitions for modification or review are pending, the Board has jurisdiction to modify its decision with respect to any part thereof, and neither party can be denied an appeal within three months from final disposition of the motion to modify the decision. Griffiths v. Commissioner, 50 F.2d 782 (C.C.A.7).”
The Commissioner’s motion to dismiss the petition for review as being untimely must be denied.
We now concern ourselves with the main issue in the case; that is, whether or not the Tax Court erred in holding $7200 per annum as excessive compensation to the corporation’s president and that only $2400 thereof should be allowed for the fiscal year ending September 30, 1960.
Taxpayer is a Missouri corporation organized in 1934. It owns a single apartment building, the Robert Louis Stevenson, in Kansas City, Missouri. The building was constructed in 1926, is seven stories in height and has four one-bedroom unfurnished apartments on each floor plus one basement apartment occupied by the janitor. The apartment building was well built and maintained but was not considered a luxury apartment because of its age and because it was not centrally air conditioned. Mr. and Mrs. Oscar D. Randal acquired all of taxpayer’s stock on October 1, 1936. The property then had a basis of $10,000 for the land and $93,500 for the improvements. At that time it was subject to a mortgage of $67,500 which had been completely paid off prior to the tax year in issue here — the fiscal year ending September 30, 1960.
Mr. Randal died in June of 1954 and on July 12,1954, Mrs. Randal was elected president of the taxpayer. She owned all of taxpayer’s stock during the year in issue.
On the question of the value of Mrs. Randal’s services to the petitioner, the uncontradieted and undisputed evidence before the Tax Court indicated that:
Following the death of her husband and Mrs. Randal’s election as petitioner’s president on July 12, 1954,. she has served continuously in this capacity. She handled the petitioner’s receipts on a monthly basis after payment of its ordinary bills by the resident manager, Frank L. Woodward, who received 5% of gross rentals as compensation, which in the year in question totalled $1,726. Her authorization was required for the payment of any of petitioner’s bills in excess of $100. She maintained the petitioner’s books and records, kept two bank accounts for the petitioner and was the only person authorized to write checks thereon. She did some work in connection with petitioner’s income tax returns which were prepared by a certified public accountant. Mrs. Randal had the full ultimate responsibility for making petitioner’s business decisions. In 1958,1959 and 1960 she learned of the construction of several large new luxury apartment buildings planned for the neighborhood and she made the decision and formulated the plans to upgrade petitioner’s apartment to meet the competition and to maintain and increase petitioner’s rental income. During the particular year in issue (the fiscal year ending September 30, 1960) she consulted with an architect and determined the specific ways necessary to modernize and update petitioner’s apartment building. During the year in question she personally priced refrigerators, stoves, kitchen cabinets, windows and doors for the modernization of petitioner’s apartment building and selected new colors and light fixtures. Prior to 1954 Mrs. Randal had been active with her husband in the operation and ownership of a number of business and income real estate properties. She became an astute business woman by reason of her activity and experience acquired prior to 1954.
A corporate resolution was adopted by the petitioner’s board of directors on July 12, 1954, directing the payment of a salary to Mrs. Randal as its president-treasurer of $7200 per year. The same salary was paid to Mrs. Randal during the succeeding years without any complaint until the year in question ending September 30, 1960. Petitioner paid dividends of $2100 in 1956, $10,000 in 1958, and $10,000 in 1959. During the year in question, 1960, petitioner transferred net income of $3500 to surplus and showed net worth at the end of that year of $85,000. Prior to the year in question Mrs. Randal testified that she had sold all of the properties she and her husband had previously managed with the exception of a residence in California and possibly a building on Fourth Street in Amarillo, Texas. Frank L. Woodward, the senior partner in Woodward & Company, an expert in the real estate management field in Kansas City, testified that he was familiar with petitioner’s apartment building and had lived there for a number of years, also being the resident manager; that he was familiar with Mrs. Randal’s activities as its president and that the sum of $7200 paid to Mrs. Randal for the year in issue constituted reasonable and just compensation for her services. As to Mr. Woodward, the Tax Court specifically stated:
“Frank L. Woodward qualified as an expert in the real estate management field in Kansas City, having been in that business for many years, and in addition he was entirely familiar with subject apartment, having lived there many years. He was also familiar with Floy’s [Mrs. Randal’s] activities as president and sole stockholder of petitioner, having served as resident manager of subject apartment since 1952.
“Mr. 'Woodward testified that in his opinion the sum of $7,200 paid to Floy during the year in issue constituted reasonable and just compensation for her services. Considering the length of time Mr. Woodward has operated in the real estate field, we can assume that he was qualified to give opinion testimony as regards reasonable compensation under the facts here present; * (Emphasis supplied.)
To counteract or rebut the foregoing, the Commissioner offered no admissible evidence as to the reasonable value of Mrs. Randal’s services to the petitioner. After reciting the facts with reference to the taxpayer’s evidence as to the value of Mrs. Randal’s services and accepting and approving of Mr. Woodward’s qualifications, the Tax Court then stated:
“ * * * but having carefully considered the entire record in this case, and especially the extent of Floy’s [Mrs. Randal’s] other activities and the rather inconsiderable amount of time which she spent in connection with petitioner’s affairs, during the year in issue, we must conclude that petitioner has failed to overcome the presumption of correctness attaching to the Commissioner’s determination.”
The two assumptions made by the Tax Court as to Mrs. Randal’s “other activities” and “the rather inconsiderable amount of time which she spent in connection with petitioner’s affairs during the year in issue” were attacked by the taxpayer’s “Motion to Correct the Court’s Memorandum Findings of Fact and Opinion”, seeking to have them stricken. The reasons given by the taxpayer moving to strike were as follows:
“1. Contrary to the Court’s statement the record is not 'indefinite and unclear as to which of the above businesses and properties Floy continued to own and operate during the year in issue.’ The year in issue was fiscal year ending September 30,1960. On cross-examination Floy testified she had sold all of the aforementioned properties except the California property in Santa Barbara and she was not sure whether she had sold the building on Fourth Street in Amarillo, Texas, at that time.
“Her testimony appears on pages ■67 and 68 of the official transcript of the testimony, copies of which are attached hereto and incorporated herein by reference as Exhibit A. There is no other testimony or evidence on the subject in the record.
“2. There is nothing in the record which either does or is intended to prove ‘the extent of Floy’s other activities’. It is true that the footnote to the Court’s opinion suggests petitioner ‘made no more than two trips to Kansas City’ in the year, but there is no suggestion as to how long she stayed on each trip. For anything the record shows she might have stayed in Kansas City six months on each occasion. In addition, but for the actual work performed by Mrs. Randal in planning and overseeing the remodeling work, Floy’s work was such that it could as well be carried on anywhere. It did not require her presence in Kansas City. She kept the books and records, she checked and reviewed and paid the bills and took care of the bank accounts and payment of the taxes. She received from Mr. Woodward and reviewed a detailed account of the rentals and expenses each month regardless of where she might be.”
If the motion to strike had been granted ■ — and we think it should have been because the record in the main fails to support the statements — there would have been left only the presumption of the correctness of the Commissioner’s determination of value upon which to rest the Tax Court’s opinion. Accordingly, we hold that the Tax Court was clearly erroneous in concluding that the petitioner had failed to overcome the presumption of correctness. Here the Tax Court has seen fit to ignore all of the evidence justifying the payment of a salary of $7200 a year. It ignores the fact that it was the same salary authorized by the board of directors in 1954 and paid yearly thereafter. The evidence further indicates that during the year in issue Mrs. Randal’s duties were increased because of the modernization of the building at that time. The Tax Court ignores the opinion of the expert Woodward, while at the same time finding distinctly that he was qualified by reason of experience and familiarity to give an opinion regarding the reasonableness of the compensation paid to Mrs. Randal. This was substantial evidence, uncontradicted by anything the Commissioner offered, and it was error to overlook it. In support of its opinion, the Tax Court cites Millspaugh Bldg. Corp. v. Commissioner of Internal Revenue, 2 Cir., 1951, 192 F.2d 887. The court therein, however, very clearly stated at page 889:
“ * * * The taxpayer failed to establish what would ordinarily be paid for like services in similar enterprises. It produced no evidence to overthrow the estimate of the Commissioner except that of the co-trustee who was not a disinterested appraiser as it was his duty to get all he reasonably could for his cestui que trust.”
This court and many other courts of appeals have very clearly held that the presumption of correctness which attaches to a Commissioner’s finding of value disappears when substantial evidence to the contrary has been introduced. As Judge Van Oosterhout said for this court in Cullers v. Commissioner, 8 Cir., 1956, 237 F.2d 611, 614:
“ * * * The presumption of correctness is a rebuttable pi-esumption and will support a finding in favor of the Commissioner only in the absence of any substantial evidence to the contrary. When the presumption has been overcome by evidence the presumption vanishes. Wiget v. Becker, 8 Cir., 84 F.2d 706; A & A Tool & Supply Co. v. Commissioner, 10 Cir., 182 F.2d 300; Mertens Law of Federal Income Taxation, Vol. 9, § 50.71.”
And in Baltimore Dairy Lunch, Inc. v. United States, 8 Cir., 1956, 231 F.2d 870, 875:
“ * * * The taxpayer has by its evidence met the burden of overcoming the presumption of correctness of the Commissioner’s finding. The Government has introduced no substantial evidence to show that the salary deduction claimed by taxpayer is unreasonable. Under such circumstances the decision of the trial court is clearly erroneous. * * In the Mayson Mfg. Co. [Mayson Mfg. Co. v. C. I. R., 6 Cir., 178 F.2d 115] case the court quotes with approval from Taylor & Co. v. Glenn, D.C.W.D.Ky, 62 F.Supp. 495, 499, the following language, 178 F.2d at page 121:
< * * * “// compensation received * * * was unreasonable for the services rendered, certainly the government could have produced some experienced witness * * * who would have said so. The lack of such evidence operates very strongly against the defendant’s contention.” ’ ” (Emphasis supplied.)
In Lawrence v. Commissioner of Internal Revenue, 9 Cir., 1944, 143 F.2d 456, the court of appeals for the Ninth Circuit, in discussing the presumption of correctness of the Commissioner’s determination, said at page 459:
“ * * * That presumption disappears when, as here, evidence is introduced which would be sufficient to sustain a contrary finding. Wiget v. Becker, 8 Cir., 84 F.2d 706, 707, 708; Cooperative Publishing Co. v. Commissioner of Internal Revenue, 9 Cir., 115 F.2d 1017, 1021, 1022; cf. New York Life Insurance Co. v. Gamer, 303 U.S. 161, 171, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218. If it appeared that the Tax Court had relied upon the presumption to sustain its finding it would be necessary for us to reverse the case.” (Emphasis supplied.)
However, the court found:
“ * * * the Tax Court expressly enumerated the factors which led it to conclude that the dividends were not constructively received by the shareholders.” (Emphasis supplied.)
Therefore it upheld the Tax Court’s determination.
In Crude Oil Corp. of America v. Commissioner, 10 Cir., 1947, 161 F.2d 809, 810, the court stated:
« -x- -x- # ipjjg presumption of the correctness of the Commissioner’s finding is one of law. It is not an inference of fact. It disappears when evidence, sufficient to sustain a contrary finding, has been introduced.”
This court said, in Arc Realty Co. v. Commissioner, 8 Cir., 1961, 295 F.2d 98, 101:
“ * * * Such a presumption may be rebutted and will support a finding in favor of the Commissioner only in the absence of substantial evidence to the contrary.”
The late Chief Judge Gardner, speaking for this court in Wiget v. Becker, 8 Cir., 1936, 84 F.2d 706, said at page 708:
“The presumption of correctness is in the class of the ‘burden of proof presumption.’ Morrison v. People of California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632. The party against whom it is invoked must fail if he does not produce evidence against it. It is often referred to in the books as the true presumption. ‘A true presumption is not evidence, though it supplies its place and requires the other party to proceed with the negative. Unless he does, he loses; when he does, the presumption is out of the case, and the issue is open.’ United States ex rel. [Scharlon] v. Pulver (C.C.A.2) 54 F.(2d) 261, 263. See, also, United States v. Le Duc (C.C.A.8) 48 F.(2d) 789; Fidelity & Cas. Co. [of New York] v. Niemann (C.C.A.8) 47 F.(2d) 1056; Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 193, 80 L.Ed. 229.”
E. Albrecht & Son v. Landy, 8 Cir., 1940, 114 F.2d 202, 206:
" * * * But the presumption in favor of the propriety of the Commissioner’s action takes flight upon the entry of proven facts. Wiget v. Becker, 8 Cir., 84 F.2d 706.”
See, also, A & A Tool & Supply Co. v. Commissioner, 10 Cir., 1950, 182 F.2d 300, 302; Gordy Tire Co. v. United States, 1961, 296 F.2d 476, 155 Ct.Cl. 759.
In the instant case, the Tax Court’s determination had to be based on the presumption of correctness of the Commissioner’s determination. As has been shown supra, the taxpayer produced substantial evidence supporting the salary voted and paid to Mrs. Randal as being reasonable. There is no suggestion in the record backed by any testimony to the effect that the salary paid Mrs. Randal was a substitute for dividends or an attempt to distribute profits. The action by the board of directors carried a presumption of the reasonableness of the compensation paid. The situation presented in the present case is quite similar to that in the case of Indiatlantic, Inc. v. Commissioner, 6 Cir., 1954, 216 F.2d 203. The taxpayer in that case paid its president $50,000 for legal, presidential and managerial services; the Tax Court allowed only a $32,500 income tax deduction. The undisputed evidence in that case showed that Emmons, the recipient, had served the corporation for thirteen years; that he hadn’t received any regular compensation for his services because of the fact that he assumed control of an insolvent corporation. The evidence further showed that Emmons brought the corporation to a solvent position. The court said at page 205:
“ -x- * * (phg resolution of the board , of directors granting him compensation of $50,000 in addition to the $15,000 paid in previous years creates the presumption that the allowance was reasonable and proper. Ox Fibre Brush Co. v. Blair, 4 Cir., 32 F.2d 42, 68 A.L.R. 696; Toledo Grain & Milling Co. v. Commissioner, 6 Cir., 62 F.2d 171; Mayson Manufacturing Co. v. Commissioner, 6 Cir., 178 F.2d 115. This rule, of course, is based upon the fact that the management of a business is presumably familiar with the amount and value of services rendered. * *
“The Tax Court produced no evidence to the effect that the compensation was unreasonable.
“This court has repeatedly held that the Tax Court is not authorized to disregard uncontradicted testimony concerning the worth and the reasonableness of services rendered -» -x- */> (Citations omitted.)
See, also, Ox Fibre Brush Co. v. Blair, 4 Cir., 1929, 32 F.2d 42, 45, affirmed 1930, 281 U.S. 115, 50 S.Ct. 273, 74 L.Ed. 733.
We hold here that the substantial testimony offered by the taxpayer clearly •overcame the presumption of correctness .attached to the Commissioner’s determination. No evidence was offered by "the Commissioner to counteract or rebut. .Accordingly this case is reversed.
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_standing
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that the parties had standing?" 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".
HANBACK v. DUTCH BAKER BOY, Inc.
No. 7205.
United States Court of Appeals for the District of Columbia.
Decided Aug. 7, 1939.
T. Edward O’Connell, of Washington, D. C., for plaintiff in error.
Paul J. Sedgwick, of Washington, D. C., for defendant in error.
. Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
STEPHENS, Associate Justice.
This case is here upon a writ of error to the Municipal Court of the District of Columbia. The plaintiff in error (hereafter referred to as plaintiff), an infant, brought suit, through her father as next friend, against the defendant in error (hereafter called defendant), a local bakery, for damages for illness caused by food poisoning. The plaintiff alleged that her mother purchased chocolate eclairs from the defendant, which had knowledge through its servants that they were intended for the plaintiff’s consumption, and that she ate one of them, which proved to be unwholesom'e, with resultant injury. The trial court sustained a demurrer to the complaint upon the ground that “lack of privity of contract bars the right of the .infant to recover on implied warranty of wholesomeness and fitness for human consumption.” The plaintiff stood on her declaration and judgment was entered for the defendant. We granted a writ. The case presents but one issue — whether a consumer of food, other than a purchaser, can recover against a seller on an implied warranty that the food is wholesome.
The appellant urges that for the protection of the public liability upon the theory of implied warranty should extend to all consumers and that the limitation to “privity of contract” is unreasonable and harsh in its results. But we considered this question in Connecticut Pie Co. v. Lynch, 1932, 61 App.D.C. 81, 57 F.2d 447, and therein held that there could be no recovery on an implied warranty where the suit was by sub-purchaser against manufacturer, this because of lack of contractual relationship between the parties. Under that holding the plaintiff must fail here. She is but the donee of a puchaser. The remedy in such situations in this jurisdiction is in tort for negligence.
In Cushing v. Rodman, 1936, 65 App.D.C. 258, 82 F.2d 864, 104 A.L.R. 1023, we held that a purchaser of food could recover from a retailer upon an implied warranty of wholesomeness notwithstanding that the retailer could not have discovered the defect without destroying marketability of the article. . The plaintiff insists that language in the opinion, to the effect that the allowance of recovery upon an implied warranty better protects the consuming public than the restriction of liability to tort, indicates an intention to overrule Connecticut Pie Co. v. Lynch. These statements were but a part of the reasons given for choosing, from divergent lines of authority in other jurisdictions, the warranty rule. In Cushing v. Rodman, far from overruling the Pie Company case, in citing it we recognized its limitation of the warranty rule. And since Cushing v. Rodman involved a purchaser, it does not rule the case of a purchaser’s donee.
Since Cushing v. Rodman, the Uniform Sales Act, D.C.Code (Supp.1939) tit. 11, c. 4, 50 Stat. 29(1937), has been passed for the District of Columbia. The sale involved in the instant case is subject to the Act, the sale occurring on September 23, 1937, and the Act taking effect on July 1 of the same year. So far as here pertinent, the Act provides:
“Sec. 15. ... there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, ■ except as follows:
“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.
“Sec. 69. ... (1) Where there is a breach of warranty by the seller, the buyer may, at his election—
* * *
“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty ....
“Sec. 76. .'. . ‘Buyer’ means a person who buys or agrees to buy goods or any legal successor in interest of such person.”
We think the language of this'Act sufficiently broad to cover sales of food and that it therefore confirms the doctrine of Cushing v. Rodman. But the Act does not aid the plaintiff in the instant case. She is neither a buyer nor, within the normal sense of the term, a successor in interest of the buyer.
Affirmed.
Question: Did the court determine that the parties had standing?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_natpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". 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.
Diane LEWIS, Plaintiff, Appellee, v. Henry KENDRICK and Lee Kendrick, Defendants, Appellants. Diane LEWIS, Plaintiff, Appellee, v. Henry KENDRICK, et al., Defendants, Appellees, City of Brockton, Defendant, Appellant. Diane LEWIS, Plaintiff, Appellant, v. Henry KENDRICK, et al., Defendants, Appellees.
Nos. 90-1480 to 90-1482.
United States Court of Appeals, First Circuit.
Heard Jan. 9, 1991.
Decided April 26, 1991.
On Rehearing Aug. 1, 1991.
Gerald S. McAuliffe with whom McPar-land & McAuliffe, was on brief, Quincy, Mass., for Henry and Lee Kendrick.
Frank A. Smith, III with whom Karen M. Thursby and Herlihy & O’Brien were on brief, Boston, Mass., for City of Brockton.
Michael Avery, Boston, Mass., with whom Charles J. DiMare and Antonino & DiMare were on brief, Amherst, Mass., for Diane Lewis.
Before BREYER, Chief Judge, Aldrich, Senior Circuit Judge, and Torruella, Circuit Judge.
Editors Note: These opinions were originally published at 931 F.2d 154 and 940 F.2d 25.
BAILEY ALDRICH, Senior Circuit Judge.
This ease demonstrates the consequence of lack of knowledge of the Federal Rules of Civil Procedure, and Evidence, and the substantive law, prior to trial: most of the questions sought to be raised are not before us. We start with the facts. Plaintiff Diane Lewis sued Henry and Lee Kendrick, police officers of the City of Brockton, and the City itself. Plaintiff claimed violations of her constitutional rights under 42 U.S.C. §§ 1983, 1985, 1986 and 1988, adding pendent state claims under the Massachusetts Civil Rights Act, M.G.L. ch. 12, § 111, and Tort Claims Act, M.G.L. ch. 258, § 2, for assault and battery, false arrest, false imprisonment, intentional infliction of emotional distress, and malicious prosecution, with compensatory damages set at $250,-000 and punitive damages at $50,000. After ten trial days the jury returned special verdicts against the Kendricks, jointly and severally, under § 1983, in the amount of $1,000, and in the same amount under the state count for false imprisonment. All other claims involving the officers were dismissed, or found in their favor. The sole finding against the City was $3,000, for negligence, under M.G.L. ch. 258, § 2. The court awarded counsel fees against the individual defendants in the amount of $49,685.90, and costs against the individual defendants, of $4,198.97. Defendants appeal. Plaintiff cross-appeals for additional counsel fees.
The total events covered by the verdicts were a 15 minute investigation by the police, the facts as to which are disputed, ending with plaintiffs arrest and a trip to the station house, with incarceration for an hour and three quarters awaiting bail. Elaborating, in the early evening of July 19, 1983, Annette Ramadan, a neighbor of the plaintiff, called the Brockton police department to report that the plaintiff was threatening her with a knife. The call went out by the police dispatcher as a code 24B (assault or assault and battery with a dangerous weapon) and the defendant police officers Henry and Lee Kendrick, brothers, who happened to be assigned to patrol together that day, responded. When they arrived at Ms. Ramadan’s residence, a crowd of children and adults had already assembled. Plaintiff Lewis, upset, approached the officers, asking, according to her, that they “please tell this lady [Ramadan] to stop hitting my kids.” The officers, she said, told her to “shut up,” to which she responded by calling them “white daddies.”
The officers then entered Ms. Ramadan’s house and asked what had happened. She responded that her daughter had been hit by plaintiff’s daughter and that she (Ramadan) had gone outside to yell at the children. After Ms. Ramadan returned home with her daughter, plaintiff had arrived, wielding a steak knife and threatening to “cut” her. She locked the back door and called the police. In response to the officers’ questioning, she emphasized that she was positive that Ms. Lewis had had a knife and she indicated her willingness to make a complaint and testify against her.
The officers, after leaving Ms. Ramadan, immediately arrested Ms. Lewis, taking her, after some resistance by her daughters, to the squad car. They questioned no one at the scene, made no inquiry of the plaintiff as to her version of events, and made no search for the knife. A search at the station house was unfruitful.
Defendants’ appeals seek to raise a number of issues. The first is a ruling on evidence allowing plaintiff to introduce 52 internal police files relating to citizens’ complaints of false imprisonment, arrest, or use of excessive force, offered to show the City’s lack of compliance with its rules and procedures. This was not error as to the City. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 571-75 (1st Cir.1989) (complaint files properly admitted on issue of supervisory liability). The City now complains that the court should have found undue prejudice under Fed.R.Evid. 403. This might have been a reasonable complaint, had the court been asked to consider it. It is a clear illustration, however, of the principle that a party must specify a point, particularly one involving discretion, to the district court for consideration. Fed.R.Evid. 103(a)(1); see Notes of Advisory Committee. The City’s ill-founded objection on the ground of hearsay did not do this; nor will we determine it in the first instance. E.g., United States v. Piva, 870 F.2d 753, 759-60 (1st Cir.1989).
Although they did not request it, the individual defendants now complain that the court did not instruct the jury not to consider the files as evidence against them, since they were not named therein. This instruction should have been given if asked for, and is one that courts often give voluntarily. At the same time, counsel must not expect to be nurse-maided. While failure to give limiting instructions even though not requested has sometimes been called plain error, see United States v. Malik, 928 F.2d 17, 23 (1st Cir.1991) (and cases collected therein), on their face these files do not relate to the individual defendants; nor does the record show that plaintiff ever claimed otherwise. We reject plain error.
There are presently three substantive issues, apart from fees: probable cause (all defendants); qualified immunity (police); negligence (City). As to the first, this is a jury matter, B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984), and defendants say that the evidence conclusively establishes it. We do not agree. On the basis of the previously stated facts, particularly that the police saw no knife, and looked for none, a jury could find that to accept a hitherto unknown alleged victim’s uncorroborated account without question, where there was ample opportunity to question it, was a circumstance that weighed against probable cause. Id. at 9-10. While “[a]n asserted victim of a crime is a reliable informant even though his or her reliability has not theretofore been proven or tested,” Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir.1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1003 (1973), it is not a per se basis for probable cause. B.C.R. Transp. Co., 727 F.2d at 9-10. On the record as a whole we hold that the jury could have found objective probable cause lacking.
Before leaving this issue we note defendants’ objection to the court’s failure to charge on good faith. Probable cause is an objective matter, and not determined by subjective intent. Beck v. Ohio, 379 U.S. 89, 91, 96-97, 85 S.Ct. 223, 225, 228, 13 L.Ed.2d 142 (1964). Possibly the officers intended this to be a request for an instruction on qualified immunity. The question of immunity is for the court. Hall v. Ochs, 817 F.2d 920, 924 (1st Cir.1987). It is not silently reserved. The last opportunity to raise it is by motion for directed verdict. Systemized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1035-36 (1st Cir.1984); Fed.R.Civ.P. 50(b). Defendants fell short. At the close of plaintiff’s case the City moved, in writing, for a directed verdict, on five grounds, one of which the court allowed. There was no claim of qualified immunity. Counsel for the officers spoke up.
I do not have a written motion for directed verdict. I was going to make a written motion for directed verdict on all counts.
The court replied, “Put it in and we’ll take no action, nunc pro tunc.” At the close of the evidence counsel for the officers still had no written motion. He merely said, “I simply want to renew my oral motion earlier for directed verdict on all counts....” Perhaps if counsel had complied with the court’s instructions for a writing he might have learned that the rule requires in the motion a specification of the grounds. Fed.R.Civ.P. 50(a). In fact, there is nothing unique about the federal rule. See Mass. Superior Court Rule 9A(a)(l). Unhappily, since the motion for judgment n.o.v. can not exceed the original motion, the point was lost.
Again, defendants’ only recourse is plain error. The fact that they lost a very possible defense that would have eliminated liability for fees is not enough; plain error requires much more. E.g., Javelin Inv., S.A. v. Municipality of Ponce, 645 F.2d 92, 94-95 (1st Cir.1981) (case must be “exceptional” in order to overlook failure to comply with Rule 50(b)). We will not grant it. As we have often said, rules are intended to be respected.
We turn to the City. Its liability was found in the affirmative answer to question 6.
6. Did the negligence of any of the public employees of the City of Brockton, including, but not limited to that of the defendant police officers and/or their supervisors, result in the arrest and injury to Diane Lewis?
This included two groups of employees, and as the jury may have chosen only one (unidentified), the answer cannot stand unless both were supportable. We find they were.
In the matter of liability other than for the actions of the individual defendants, one of the City’s police regulations called for the immediate sending of a supervisor to the scene in case of a report of a serious crime, and there was evidence, though contradicted, that this assault, as reported, qualified as such. A jury could well find that a supervisor would have given more weight to the absence of any evidence of a knife beyond the alleged victim’s claim, and might have declined to arrest. Further, without the need of reciting the detail, the scant evidence of police training, particularly recently, with respect to constitutional rights, warrantless arrests, and probable cause, could have been found deficient. In such circumstances proximate cause was for the jury; defendant officers might have benefited by more training. The City complains that no expert opinion as to insufficiency was introduced. The training was sufficiently slight that we consider it within the court’s discretion to conclude that a jury could find it insufficient without the specialized information contemplated by Fed.R.Evid. 702.
Alternatively, the City could be liable under M.G.L. ch. 258, § 2 for the negligence of defendant officers acting within the scope of their duty. E.g., McNamara v. Honeyman, 406 Mass. 43, 46, 546 N.E.2d 139 (1989). To arrest without probable cause, even though in good faith, could be found negligent. Accordingly, we must rule that the jury’s affirmative finding in answer to special interrogatory 6 was justified, whatever basis it may have adopted.
Attorney’s Fees. Before reaching the amount of the award, we note that the court had a question whether the verdicts were so small as not to warrant a fee at all. Including interest (the jury rejected prejudgment interest), the court entered, “Total Judgment in the amount of $5,608.55.” On the awarding of fees it said, “Although the damage award was only $5,000.00 this Court is of the opinion that $5,000.00 is not de minimis, although I caution counsel that it is dangerously close.” In point of fact, $5,000.00 was redundant. The City was a separate defendant, but plaintiffs injury, her damages, were one and the same, and were caused entirely by the police; the City’s liability was merely duplication. Municipal liability under M.G.L. ch. 258, § 2, the sole found basis, is “to the same extent as a private individual under like circumstances.” Had there been punitive damages found, that would have been another matter. When the only damages were caused by the police, it was error to make a greater finding against the City. We consider this point, though not raised, because it is material to the fee, which was properly raised. At most, the total liability of each defendant should be $2,000, with only one recovery.
Actually, even $2,000 is redundant, as we suggested in oral argument. The judgment speaks of “the federal theory of liability,” and “the state theory of liability,” but these were but two ways of imposing liability for the same occurrence. See Clark v. Taylor, 710 F.2d 4, 8 (1st Cir.1983). In a careful explanation the court instructed the jury that false arrest legally constituted false imprisonment, and that the federal theory and the state theory “coincide[d].” There was no objection. It is not only the law of the case, but independently factually sound, that both findings covered the same injury, and were but alternate ways of reaching a result. Plaintiffs recovery must be limited to $1,000.
As we have recently noted, the award of an attorney’s fee in civil rights cases is in the discretion of the district court, as distinguished from some other fee-providing statutes that are absolute. de Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232, 233-34 (1st Cir.1990). The Civil Rights Act’s comparatively less generous provisions are to be recognized. West Virginia Univ. Hosps., Inc. v. Casey, — U.S.-,-, 111 S.Ct. 1138, 1140-1143, 113 L.Ed.2d 68 (1991) (no expert witness fees). At the same time the court must have, and express, special reasons if it is to refuse, de Jesus, 918 F.2d at 234. In this case the court did not refuse, but where it considered an amount five times the correct recovery “dangerously close,” we are not bound by its discretionary conclusion; indeed, we may infer that if it had realized the correct figure it might well have concluded the other way. In any event, we cannot remand, if appropriate, to inquire of the trial judge, as he has retired. We accordingly take as our start a paragraph from the de Jesus opinion.
Moreover, defendants offer no support for their theory limiting success to those plaintiffs whose damage awards closely approximate the sums sought. Indeed, the Supreme Court has firmly rejected this approach, holding unanimously that “the degree of the plaintiff’s success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to eligibility for a fee award at all,” Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782, 790 [109 S.Ct. 1486, 1492, 103 L.Ed.2d 866] (1989) (emphasis in original). See also City of Riverside v. Rivera, 477 U.S. 561, 574 [106 S.Ct. 2686, 2694, 91 L.Ed.2d 466] (1986) (“The amount of damages a plaintiff recovers is certainly relevant to the amount of attorney’s fees to be awarded....”) (emphasis added); id. at 585 [106 S.Ct. at 2699] (Powell, J., concurring). Any other view would be inconsistent with the recognized principle that even small damage awards may mean a substantial victory for “ ‘a policy that Congress considered of the highest importance,’ ” City of Riverside, 477 U.S. at 575 [106 S.Ct. at 2694] (quoting H.R.Rep. No. 94-1558 (1976)).
918 F.2d at 234. This does not, however, resolve the questions in this case. Does there come a point, short of absolute loss, of de minimis, where the “eligibility for a fee award” disappears, and may that question be approached in the light of the original demands?
In Texas State Teachers Ass’n, 489 U.S. at 792, 109 S.Ct. at 1493, the Court spoke of “a resolution of the dispute which changes the legal relationship” between the parties. But it went on to say that if plaintiff there had received only a very minor injunction that the District Court characterized as “of minor significance,” “we think it clear that this alone would not have rendered them ‘prevailing parties’ within the meaning of § 1988.” Id. The Court added a quotation from Chicano Police Officers Ass’n v. Stover, 624 F.2d 127, 131 (10th Cir.1980), “Nuisance settlements, of course, should not give rise to a ‘prevailing’ plaintiff.”
How far this recognized the propriety of comparing the result with the relief sought can not be generalized. It must, in any event, be decided on a case by case basis. Of course it is expected in some cases that the recovery will necessarily be small, far smaller than the fee based on reasonable hours spent to obtain it. We quite agree with plaintiff’s district court fee memorandum in which she said, “[I]t is precisely in cases when Plaintiff has no realistic expectation of substantial monetary damages that fees under the Act are required to attract an attorney to handle the case.” And normally, as said, even when the amount sought is large and the recovery is small, the effect is only that the fees may be reduced; eligibility is not lost. In Texas State Teachers Ass’n, 489 U.S. at 790, 109 S.Ct. at 1492, the Court reversed a denial of fees based on petitioners having failed to succeed on their “central issue,” the Court holding that the proper rule had been voiced in our case of Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978), namely, “succe[ss] on any significant issue in litigation which achieves some of the benefit the parties sought.”
Again, in Stefan v. Laurenitis, 889 F.2d 363 (1st Cir.1989), plaintiffs, on the eve of trial, settled a case in which they had claimed $1,900,000 in compensatory and punitive damages for interference with their business, for $16,000, attorney’s fees to be determined. In approving a fee, we made a point of the fact that $16,000 was not insignificant, and “not only was not de minimis, but may deter future harassment of Stefan and Dunn.” 889 F.2d at 369.
One thousand dollars is much less than $16,000, and a very much larger reduction, percentage-wise, from the $300,000 sought. Is it de minimis? If reached on the courthouse steps, would it have been regarded as a nuisance settlement? We think the answer is, Yes. But even if it should not be held de minimis viewed from the standpoint of loss of eligibility for a fee, may this recovery, in the light of plaintiff’s original demands and overall conduct, affect the court’s discretion in deciding whether fees should be awarded? Plaintiff has failed entirely, or largely, in everything. As against the officers, on the basis of the jury answers or otherwise, she established no use of “unnecessary” or “excessive” force; no intentional emotional damages; no malicious, or groundless, prosecution; no state claim for interference, or attempt to interfere, with plaintiff’s federal constitutional rights and laws, or state laws. As against the City, no deliberate indifference to constitutional rights in respect to training, supervision and/or discipline of its police officers. This last, if answered affirmatively, could have been a favorable result quite apart from a money judgment. See Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987); City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986). And, of course, no punitive damages.
We could stop there, but that is not all. Even allowing generously for puffing, if, in their complaint, counsel observed Fed.R.Civ.P. ll’s requirement of good faith allegations, the jury assessment is a rough measure of how far plaintiffs proof fell short. In ten trial days all that was proved was a simple street arrest and detention for bail, based on a mistaken assessment of probable cause in a two-party altercation. If, in their original claims, counsel possessed a “realistic expectation of substantial monetary damages” (plaintiffs fee memorandum, ante), even unperceptive counsel must have appreciated they had markedly failed. Under the circumstances, instead of seeking to charge their full 952.25 hours (approximately half a billable year), making no downward adjustment, they should have observed the requirements of the seminal case of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). There the court said, at page 440, 103 S.Ct. at page 1943,
A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.... [Wjhere the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
In addition, at page 434, 103 S.Ct. at page 1939, the Court said,
Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.
And, at page 436, 103 S.Ct. at page 1941,
If ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiffs claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
Counsels’ request for full fees, and costs some of which the court labelled “outrageous,” was in open disregard of these principles.
Nor could we think this inadvertence. Counsel well knew Hensley. It confirms our initial suspicions of the marked excessiveness of their conduct. The fee provisions in § 1988 of the Civil Rights Act are intended to enable injured parties to obtain counsel, not to enable counsel to obtain munificent fees. To turn a single wrongful arrest into a half year’s work, and seek payment therefor, with costs, amounting to 140 times the worth of the injury, is, to use a benign word, inexcusable. We should not tolerate, even by a partial award, such an imposition by counsel on the defendants, and on the court. In the exercise of the statutory discretion, we reverse the award of fees altogether.
Costs, too, seem surprising, but there was no appeal of any consequence. The case is remanded to substitute an amended judgment in plaintiff’s favor against all defendants, jointly, in the amount of $1,000, with interest from the date of verdict, and with costs as before, but without interest.
No costs in this court.
. We have not computed the now-sought figure. Plaintiffs initial request was for $132,778, with costs of $6,960.
. de Jesus forestalls our reopening the question of qualified immunity. If the officers had been so entitled, they would not have had to pay attorney’s fees, but de Jesus indicates that where plaintiff won, it is no answer that she may not have deserved to. 918 F.2d at 235.
. Both claims were put to the jury. Their entire basis was plaintiffs disputed testimony that the officers had allowed her handcuffs to become too tight.
. As a specific example, we note in plaintiffs trial court memorandum on fees a claim that "the Brockton Police Department is one of the worst on the eastern coast of the United States.” How, when plaintiff failed in her proof as to constitutionally deficient training, this allegation should support her claim for fees, especially when chargeable against, and only against, defendant officers, is not understandable.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SHEEHAN & EGAN, Inc., et al. v. NORTH EASTERN SHOE CO.
No. 2597.
Circuit Court of Appeals, First Circuit.
Nov. 21, 1931.
John M. Fogarty, of Lynn, Mass. (H. Ashley Bowen, of Lynn, Mass., on the brief), for appellants.
Walter M. Espovich, of Haverhill, Mass., for appellee.
Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.
BINGHAM, Circuit Judge.
This is a petition for leave to appeal from an order of the District Court for Maine in a proceeding in bankruptcy. The appeal was allowed by this court October 19, 1931.
It appears that on April 19, 1939, Sheehan & Egan, Inc., and two other creditors filed a petition in bankruptcy against the North Eastern Shoe Company; that about a year later, on April 29, 1931, the shoe company .filed a petition in the District Court stating that “a composition of 29 per cent upon all unsecured debts not entitled to priority, payable in cash, in satisfaction of its debts will be proposed by it to its creditors before adjudication,” and praying “that a meeting of its creditors may be duly called to act upon said proposal for a composition before adjudication;” and that on that day it filed a schedule of its property and list of creditors.
May 8, 1931, the District Judge entered the following order on this petition:
“It is ordered, that this matter be referred to Ralph E. Mason, Esq., of Ells-worth, Maine, referee, as special master for the purpose of calling a meeting of creditors to consider the proposed offer of composition to be made by the alleged bankrupt, and to do each and every other thing- necessary in and about carrying out said offer of composition,” and staying- adjudication “until said offer of composition be either confirmed or rejected by the court.”
June 1, 1931, the referee sent a notice to the creditors of the North Eastern Shoe Company stating:
“Notice is hereby given that a petition has been filed against the above named North Eastern Shoe Company, and that a special meeting of its creditors will be held on the 17th day of June, 1931, at ten a. m., at the Counsel Chambers, City Hall, Waterville, in said district, at which time and place the creditors may attend, for the allowance of claims, examination of the bankrupt, preservation or conduct of the estate and to consider a composition offer of twenty per cent in cash upon all unsecured claims not entitled to priority, and to transact such other business that may properly come before said meeting.”
On May 1, 1931, the day following the filing of the petition requesting a meeting of creditors to consider a composition and prior to the order of the court thereon of May 8, 1931, the North Eastern Shoe Company, by Clyde H. Smith, its treasurer, sent to each of its creditors a letter stating:
“The North Eastern Shoe Company is making an offer in composition of twenty (29%) per cent to all its creditors, which in my opinion and in the opinion of those who have interested themselves in the case, is all that could possibly be realized from the assets of the North Eastern Shoe Company, as is plain to be seen by the enclosed statement. Immediate acceptance on the part of a majority of the creditors will mean that the dividend will be distributed at once, without further impairment of assets and without expense to the creditors. To that end and for that purpose, I am enclosing herewith a proof of claim together which an assent to the composition offer, and would thank you to sign the proof of claim, annex a statement of your account to it, and have the same acknowledged before a notary public, who should affix his seal; also sign the assent and return both of them to me at once so I may be in possession of a majority of the assents of creditors.”
The form of assents inclosed in each letter were alike. One of them sent to and signed by a creditor reads as follows:
“We the creditors whose signatures, residences, claims, and the amount at which the same have been allowed, are hereafter set out, do hereby* accept the offer of composition at twenty (29%) percent made herein by the North Eastern Shoe Company, the above-named alleged bankrupt, on the fifth day of May, 1931, this acceptance, however, to be effective only after such alleged bankrupt shall be examined in open court.
Debts Signature of Creditors. Residences. Allowed. Summit Thread Co. Boston, Mass. $151.83.”
On October 6,1931, when the petition for leave to appeal came on to be heard in this court, “it was stipulated by counsel in open court that there had been no examination of the alleged bankrupt prior to the sending of the notices to creditors of the composition offer with form of proof of claim and assent.”
Oh June 17, 1931, pursuant to the above notice of the referee, a meeting of creditors was held. At this meeting the bankrupt, through its treasurer, was examined in open court. A majority of all creditors whose claims were allowed, viz. 78 in number representing claims aggregating $31,019.80, had assented in writing to the bankrupt’s offer of composition; five creditors with claims of $4,639.82 stated in writing that they wished to remain neutral; and fifteen creditors representing indebtedness of $2,426.85 voted to reject the offer of composition.
On June 20, 1931, the bankrupt filed an application asking that the composition be confirmed. A time and place for hearing thereon having been fixed, a hearing was had before the District Court. Upon the evidence produced at that hearing and a review of the evidence before the referee, the court found that the bankrupt had not been guilty of any acts which would bar his discharge; that the offer of composition and its acceptance were in good faith, and not made or procured by any forbidden means, promises, or acts, and that it was for the best interests of the creditors that the composition be confirmed. Having found the above facts, the court ruled that a consideration of all the proceedings did not show that anything had been done in contravention of the statute providing that a bankrupt may offer terms of composition to his creditors, after, but not before, he' has been examined in open court or at a meeting of his creditors (section 12a of the act, 11 USCA § 30(a); and that there was no prohibition or objection to a debtor communicating with creditors in regard to his offer and procuring conditional acceptances.
Having thus ruled, the court ordered the composition confirmed, and this appeal was taken.
From the foregoing it clearly appears that an offer of composition was made before the examination of the bankrupt was had; that the offer of composition was made to creditors on May 1, 1931, and that the examination was not had until June 17,1931, in response to the notice sent to creditors June 1, 1931; and the parties have stipulated “that there had been no examination of the alleged bankrupt prior to the sending of the notices to creditors of the composition offer,” on May 1,1931.
When this ease was previously before us [47 F.(2d) 487, 488], it appeared that on June 11, 1930, a hearing was had before the District Court on the bankrupt’s answer to the petition in bankruptcy, in which it simply denied that it had committed the act of bankruptcy set forth in the petition or that it was insolvent; and, because the bankrupt’s treasurer testified at that hearing upon the issues raised by the answer, it is now for the first time contended that an examination of the bankrupt, within the meaning of section 12a, was had on June 11,1930, in open court. This contention is without merit. The examination contemplated by section 12a is not the giving of testimony by a bankrupt, or its treasurer, as a witness on the question of solvency or the commission of an act of bankruptcy charged in an involuntary petition, but an examination to which the bankrupt is required to submit by section 7a (9), 11 US CA § 25(9) which provides:
“See. 7(a). The bankrupt shall * * * (9) when present at the first meeting of his creditors, and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate.” See In re Back Bay Automobile Co. (D. C.) 158 F. 679.
The main questions raised on this appeal are whether the District Court should have refused confirmation, either (1) because an offer of composition was made to creditors by the bankrupt before it was examined in open court or at a meeting of its creditors, or (2) because the assents thereto were procured before the alleged bankrupt had been examined in open court or at a meeting of its creditors.
In section 12a of the Bankruptcy Act it is provided:
“See. 12a. A bankrupt may offer, either before or after adjudication, terms of composition to his creditors, after, but not before, he has been examined in open court or at a meeting of Ms creditors, and has filed in court the schedule of his property and the list of his creditors required to be filed by bankrupts. In compositions before adjudication the bankrupt shall file the required schedules, and thereupon the court shall call a meeting of creditors for the allowance of claims, examination of the bankrupt, and preservation or conduct of the estate, at which meeting the judge or referee shall preside. * * * ”
The language of the act — that a bankrupt may offer terms of composition after, but not before, he has been examined in open court or at a meeting of his creditors — is so specific that it does not call for construction. It speaks for itself. In this case there was a clear violation of this provision, for the letters of May 1, 1931, sent by the bankrupt to its creditors, offered terms of composition as plainly and unequivocally as an offer could be made. This offer not only was made before the examination contemplated by section 12a was had on June 17,1931, but before the examination was had many and probably all of the acceptances had been obtained. It is true that the acceptances contained a provision that they were “to be effective only after such alleged bankrupt shall be examined in open court.” But this does not alter the situation. There could be no acceptances, conditional or otherwise, without a previous offer of composition, and the previous offer was made on or about May 1, 1931, and long prior to the examination of the bankrupt.
The matters here in question were under consideration in Re Jablow (C. C. A.) 15 F.(2d) 131, 132, and in Re Berler Shoe Co. (D. C.) 246 F. 1018. In reading the decision in Be Jablow, it is necessary to keep in mind the distinction between making an offer of composition, or obtaining acceptances, before an examination of the bankrupt, and the making of an offer of composition, or obtaining acceptances, in advance of a meeting to consider a composition. In that case it was held that an offer of composition made before an examination of the bankrupt was in direct contravention of the statute (section 12a); but it was there said: “There is no proMbition in the law against procuring acceptances in advance of a meeting to consider a composition.” TMs is undoubtedly a correct statement of the law, but it contemplates that, prior to the meeting to consider composition, an examination of the bankrupt has been had. It does not mean that an offer of composition may be made and acceptances procured in advance of the bankrupt’s examination, but only in advance of the meeting to consider composition.
Form No. 60 of the Forms in Bankruptcy (11 USCA § 53) is so drawn that it is applicable only where there has been a previous examination of the bankrupt, as contemplated in sections 12a and 7a (9) of the Bankruptcy Act. It may be more convenient and save time to have the offer of composition submitted for consideration at the meeting called for the examination of the bankrupt than to have two separate meetings; but, when such a course is taken, it is incumbent upon the bankrupt, in order to comply with section 12a, to see that he does not offer terms of composition to his. creditors before Ms examination. Congress, in providing that an offer of composition should not be made before examination of the bankrupt, evidently did so in an endeavor to place the creditors in a position of understanding so they could fairly decide what course to pursue in regard to accepting or rejecting the offer, wMch they could not be presumed to occupy before the examination contemplated by the act was had.
By section 12d (3) of the act, 11 USCA § 30(d) (3), the judge is authorized to confirm a composition if, among other things, “(3) the offer and its acceptance are in good faith and have not been made or procured except as herein provided.” Such being the express provisions of the act and the bankrupt having violated section 12 (a) by offering terms of composition before examination, no other course was open to the District Court than to refuse confirmation.
The order of the District Court is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellants recover costs of appeal.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_casetyp1_1-3-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
William Tyrone HARRIS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
No. 77-2238
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1978.
William Tyrone Harris, pro se, Melvyn C. Bruder, Dallas, Tex. (Court-appointed), for petitioner-appellant.
John L. Hill, Atty. Gen., Joe Dibrell, Asst. Atty. Gen., Chief Enforcement Div., P. E. George, David M. Kendall, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Before RONEY, GEE and FAY, Circuit Judges.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This appeal is from a district court judgment denying relief to petitioner in a habe-as corpus proceeding. Petitioner’s application for habeas corpus relief comes more than twenty years after his 1952 murder conviction in a state court in Texas. The conviction was affirmed in Harris v. State, 158 Tex.Cr.R. 37, 253 S.W.2d 44 (1952). Since petitioner was denied representation by counsel in his appeal from the conviction, the Texas Court of Criminal Appeals permitted the petitioner an out-of-time appeal in 1973. This Court also ordered that petitioner be granted an out-of-time appeal or a new trial. Harris v. Estelle, 487 F.2d 56 (5th Cir. 1973). Petitioner claims that the failure of the State to provide a verbatim transcript precluded him from taking an effective out-of-time appeal and from having effective representation of counsel on appeal. Since petitioner was provided with a suitable alternative to a verbatim transcript, we affirm the judgment of the district court.
At the outset it must be noted that petitioner exhausted state remedies as to his claim that the absence of a verbatim transcript prevented him from effectively appealing his conviction. Petitioner bases his additional claim of ineffective representation by counsel, however, on the failure of the State to provide a verbatim transcript. Because petitioner’s claim of ineffective representation of counsel is founded on his contention that the record was insufficient, a determination that the reconstructed record was a suitable alternative makes it unnecessary for this Court to pass on whether petitioner’s claim of ineffective representation was adequately presented to the State courts.
It is well established that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided. Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-415, 30 L.Ed.2d 372 (1971); Morgan v. Massey, 526 F.2d 347, 348 (5th Cir. 1976); Mack v. Walker, 372 F.2d 170, 172-174 (5th Cir. 1966). Quoting Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the Supreme Court reiterated in Mayer, supra, that
Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript.
Alternative methods of reporting trial proceedings are appropriate particularly where state appellate rules provide a procedure for reconstruction of the trial record, and indigents and nonindigents are treated the same. See Morgan v. Massey, supra, and Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
Petitioner obtained the same type of record provided to nonindigent defendants. Pursuant to Article 759 of the 1925 Texas Code of Criminal Procedure (in effect in 1952) the State did not provide a verbatim transcript of any criminal trial proceedings. Only a statement of facts in narrative form was available to defendants in criminal cases.
Petitioner was given an opportunity to supplement the record of his criminal case at an evidentiary hearing in state court. Several witnesses from the original trial testified to material events which occurred at trial. Petitioner was allowed to bring out facts about his trial that were not reflected in the original record. A verbatim transcript of that proceeding was prepared and made a part of the record.
Although the state trial court found that petitioner could not have had a meaningful out-of-time appeal because the original trial transcript was incomplete, the Criminal Court of Appeals reversed. Noting that pertinent witnesses who appeared at the original trial gave testimony at the eviden-tiary hearing on points concerning petitioner’s claims of reversible error, the Criminal Court held that the evidence adduced was sufficient to rule on the claimed errors, and affirmed the conviction.
Petitioner asserts that Texas laws permit a narrative statement of facts to substitute for a verbatim transcription of the record only when bills of exception are filed by trial counsel. The record shows that trial counsel did file two bills of exception. Further, under Texas criminal procedure laws, petitioner was entitled to file additional bills of exception in the out-of-time appeal. Tex.Code Crim.Proc. arts. 36.20 and 40.-09(6), (6a) and (16). Petitioner’s assertion, therefore, must fail.
Petitioner was provided a statement of facts in narrative form in accordance with state law. The record provided petitioner was the same type of record given to all defendants in criminal cases, including nonindigent defendants. At a subsequent evidentiary hearing petitioner was given an opportunity to adduce evidence to supplement the record. Witnesses from the trial testified at the hearing to facts surrounding petitioner’s claims of error. For these reasons we conclude that a suitable alternative to a verbatim record was provided, and petitioner was not denied an effective appeal.
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:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Howard R. WARD, Plaintiff-Appellant, v. NORTHERN OHIO TELEPHONE COMPANY, Defendant-Appellee.
No. 14569.
United States Court of Appeals Sixth Circuit.
April 3, 1962.
H. Guy Hardy, Cleveland, Ohio (McDonald, Hopkins, Hood & Hardy, Cleveland, Ohio, on the brief), for appellant.
Sidney D. Griffith, Columbus, Ohio (Power, Griffith & Jones, Columbus, Ohio, John R. Eastman, Eastman, Stichter & Smith, Toledo, Ohio, on the brief), for appellee.
Before McALLISTER, CECIL and WEICK, Circuit Judges.
McALLISTER, Circuit Judge.
Appellant Ward is the operator of a radio station duly licensed by the Federal Communications Commission. Appellee telephone company which formerly furnished telephone lines to him to carry radio broadcasts from the source of the program to the transmitter for broadcast, now refuses to continue that service, and claims that it is under no obligation to do so, since it is a company engaged only in intrastate telephone business within the State of Ohio, and subject only to the jurisdiction of the Public Utilities Commission of Ohio. Upon appellant’s petition filed against appellee telephone company for damages for refusal to furnish such lines, the district court held that it had no jurisdiction over the subject matter of the claims set forth, and dismissed appellant’s petition.
It is contended by appellant that appellee company unlawfully refused to furnish telephone lines to him in his capacity as operator of a radio station transmitting radio for broadcast purposes across state lines; that appellee company, although it has all of its telephone facilities located in only one state, is subject to damages for its refusal to furnish such telephone lines to him, under the provisions of federal statutes; that a federal question was presented to the district court by appellant’s petition, setting forth such facts; and that the district court erred in dismissing his petition on the ground that it had no jurisdiction over the subject matter of the claims set forth therein.
Appellee telephone company contends that it is not doing business in interstate commerce as a common carrier engaged in interstate communication; that all of its facilities are located in one state and that it is therefore engaged only in intrastate communication; that it is only a connecting carrier, and, except for limited purposes of accounting and furnishing reports, not relevant in this case, it is not subject to the provisions of the Federal Communications Act which require a telephone company to furnish wire service to radio stations, under which Act appellant brought his suit; and that, in any event, it is specifically exempted from the provisions of the statute which require telephone companies to furnish such wire service.
Title 28 U.S.C.A. § 1337 provides: “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.”
Title 47 U.S.C.A. § 201 et seq. provide for the furnishing of interstate and foreign communication by wire or radio, upon reasonable request; prohibits unjust and unreasonable discrimination and preferences; regulates charges to be made for services; provides that such charges or services, whenever referred to in the Act, shall include those in connection with the use of wires in chain broadcasting or incidental to radio communication of any kind; sets forth the carrier’s liability for damages for violation of the Act; and provides for actions to recover such damages.
It is agreed that all of the facilities of appellee telephone company are located in the State of Ohio. Nevertheless, it is conceded by appellee company that it is subject to the provisions of Title 47 U.S. C.A. §§ 219-220, inclusive, to the extent that it is required to account to, and render certain requested reports to, the Federal Communications Commission.
Title 47 U.S.C.A. §§ 152 and 153, governing telephone companies engaged in interstate communication, and excepting certain companies from the application of its provisions, is also relevant in the light of certain contentions of appellee.
In spite of a number of issues presented, and the complexities of relevant statutory provisions, there is a single controlling issue in this ease; whether a telephone company, with all of its facilities located in one state, engaging only in intrastate telephone communication except for physical connections with carriers in other states, is subject to federal statutes requiring it to furnish telephone lines to radio stations broadcasting across state boundaries.
In the case of In re: Capital City Telephone Company, 3 F.C.C. Reports, 189, the Federal Communications Commission determined one of the main questions raised in this controversy. In that case, the Capital City Telephone Company was located entirely in the State of Missouri and leased its telephone lines to a radio station within the State of Missouri. In its decision, the Commission said:
“Congress was cognizant of the fact that wires were used in connection with broadcasting. The intention of Congress to clothe the Federal Communications Commission with jurisdiction over charges and services for wires used in radio communication is evidenced by Section 202(b) which reads: ‘Charges or services, whenever referred to in this Act, include charges for or services in connection with the use of wires in chain broadcasting or incidental to radio communication of any kind.’
“The fact that the wires used to carry the program from the microphone to the transmitter may be confined to a single state does not mean that the wires are not used in interstate communication. The contract or leasing arrangement may be for a wire service which begins and ends within a single state. The complete transmission, however, is an interstate communication and is therefore subject to legislation by Congress under the commerce clause. * * *
“In view of the express provisions of the Communications Act relative to the use of wires in connection with broadcasting, it is indisputable that Congress has legislated on that question. It is a well established rule of constitutional interpretation that when Congress has legislated on a subject which is within its jurisdiction, such legislation is exclusive and the power therein granted by Congress is exclusive of all other powers. * * *
“The interstate communication of a broadcasting company begins at the microphone, passes over the wires to the transmitter, and then through the ether, constituting a continuous interstate communication which, because of its very nature, must be subject to federal regulations. * * *
“This Commission has exclusive regulatory jurisdiction over wires and wire service furnished by a telephone carrier to a radio broadcasting station, even though such wires do not cross state or national bound • aries.” (Emphasis supplied.)
Where lines, therefore, are furnished for broadcast purposes to a radio station by a telephone company, the telephone company is engaged in interstate communication, and is in interstate commerce, subject to federal law, even where all the property of the company is located within a single state. “No state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities.” Federal Radio Commission v. Nelson Brothers Bond and Mortgage Company, 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166. Radio communication is interstate communication; and although all its facilities are located in one state, and although it is a connecting carrier, a telephone company, required to furnish lines to a radio station, on reasonable request, is considered a common carrier engaged in interstate communication. Such a common carrier, engaged in such interstate communication, is subject to the Federal Communications Act, including the sections providing for remedial action to be brought in the district court because of a violation of the Act. The conclusion therefore follows that, under these statutes, appellee telephone company, insofar as the furnishing, or obligation to furnish, wires for broadcast purposes, is engaged in interstate commerce; and that it is under a duty to furnish such communication service by the use of wires to appellant either in chain broadcasting, or incidental to radio communication of any kind.
Appellee telephone company contends that it does not come under Title 47 U.S. C.A. §§ 206 and 207, heretofore referred to, which provide for the carrier’s liability for damages and suit for recovery thereof, since it is not a “common carrier”, subject to the provisions of this chapter, and that it is subject to the Act only for accounting and reporting services. Appellee further submits that the foregoing statutory sections do not apply to it, as it carries on only intrastate business.
In support of its contentions, appellee refers to the fact that Title 47 U.S.C.A. § 153 (u) defines “common carrier” or ■“carrier” as any person engaged as a common carrier for hire in interstate or foreign communication by wire or radio, or in interstate or foreign radio transmitting of energy, except where reference is made to common carriers not subject to the Act; and that the statute defines “connecting carrier” as a carrier engaged in interstate communication only through physical connection with another carrier in an adjoining state.
It is claimed, by virtue of the foregoing, that appellee company is not a ■“common carrier” within the meaning of the Act, since it is not engaged in interstate commerce, but only in intrastate communication. It is submitted, rather, that, under the above statute, appellee company is only a “connecting carrier” as distinguished from a “common carrier” ; and that a connecting carrier not engaged in interstate communication is not subject to the provisions of the federal statute requiring it to furnish wire communication service to a radio station. It is therefore contended that appellee, not being a common carrier engaged in interstate communication, is not subject to the provisions of the statute requiring a telephone company to furnish wire communication service to a radio station.
Appellee company argues that under Title 47 U.S.C.A. § 152(b), it is specifically excepted from the application of the statute. This contention stems from the following: the above provision of the statute sets forth that nothing in the Act shall be construed to apply or to give the [Federal Communications] Commission jurisdiction with respect to (1) charges, services, or facilities in connection with intrastate communication by wire or radio of any carrier, or (2) any carrier engaged in interstate communication solely through physical connection with the facilities of another carrier; or (3) any carrier engaged in interstate communication solely through physical connection by radio, or wire and radio, with facilities located in an adjoining state. It is, however, to be emphasized that at the conclusion of Section 152(b), it is provided that Sections 201-205 of the Act shall apply to carriers described in subsections (2) and (3).
When we examine the above-mentioned exception in the statute, we find that Sections 201-205 of the Act, relating to services, charges, unlawful discriminations, and preferences apply to any carrier, which is engaged in interstate communication solely through physical connection with the facilities of another carrier, or to any carrier, which is engaged in interstate communication solely through connection by radio, or by wire and radio, with facilities of another carrier located in an adjoining state.
Appellate telephone company is, therefore, not excepted from the jurisdiction of the Federal Communications Commission or from the statute giving a right of action for refusing to furnish wire service to a radio station.
It is our conclusion that appellee telephone company is subject to Title 47 U.S.C.A. § 207, which provides, as heretofore stated, that an action can be brought in any district court of competent jurisdiction against common carriers engaged in interstate communication solely through physical connection, or connection by radio, or by wire and radio, with facilities of another carrier in an adjoining state, for failure to supply wire services, since such carriers, even though defined as connecting carriers, are subject to Sections 201-205 of Title 47 U.S.C.A.
All of the provisions of the Act, as well as the subject matter with which it is concerned, regarding the duties and liabilities of such a carrier as appellee telephone company, would be futile without the remedial provisions setting forth a right to damages for violation thereof and the method of enforcing such right. It would be unreasonable to hold that appellee company is subject to the duties and liabilities set forth in the statute but that it is not subject to the provisions for enforcement of the rights which the company may see fit to violate; and we see no reason to conclude that, while ■appellee company is subject to Sections 201-205, inclusive, of the Act, it is not subject to Sections 206-207, inclusive.
It is our conclusion, therefore, that the district court had jurisdiction over the subject matter of the claims set forth in the petition.
In accordance with the foregoing, the order of dismissal is set aside, and the case remanded for a hearing on the merits.
. The relevant portions of Title 47 U.S. C.A. are as follows:
Section 201 provides:
“Services and ehwges — (a) It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor * *
Section 202 provides:
“Discrimination and preferences — (a) It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service * * *.
“(b) Charges or services, whenever referred to in this chapter, include charges for, or services in connection with, the use of wires in chain broadcasting or incidental to radio communication of any Icind.” (Emphasis supplied.)
Section 203 provides that every common carrier except connecting carriers must file rates and charges.
Section 204 relates to hearings on charges filed by common carriers.
Section 205 provides for hearings against carriers.
Section 206 provides:
“Carriers’ liability for damages — In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.”
Section 207 provides:
“Recovery of damages — Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.”
. Section 152 provides:
“Application — (a) The provisions of this chapter shall apply to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided; but it shall not apply to persons engaged in wire or radio communication or transmission in the Oanal Zone, or to wire or radio communication or transmission wholly within the Oanal Zone.
“(b) Subject to the provisions of section 301 of this title, nothing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier, or (2) any carrier engaged in interstate or foreign communication solely through physical connection with the facilities of another carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with such carrier, or (3) any carrier engaged in interstate or foreign communication solely through connection by radio, or by wire and radio, with facilities, located in an adjoining State or in Canada or Mexico (where they adjoin the State in which the carrier is doing business), of another carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with such carrier, or (4) any carrier to which clause (2) or clause (3) of this subsection would be applicable except for furnishing interstate mobile radio communication service or radio communication service to mobile stations on land vehicles in Canada or Mexico; except that sections 201-205 of this title shall, except as otherwise provided therein, apply to carriers described in clauses (2)-(4) of this subsection.”
Section 153 provides:
“Definitions — For the purposes of this chapter, unless the context otherwise requires— * * *
“(h) ‘Common carrier’ or ‘carrier’ means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier. * * *
“(u) ‘Connecting carrier’ means a carrier described in clauses (2), (3), or (4) of Section 152(b) of this title. * * * ”
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_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
BRYANT v. COMMISSIONER OF INTERNAL REVENUE.
No. 6156.
United States Court of Appeals. Fourth Circuit.
Argued Oct. 16, 1950.
Decided Dec. 8, 1950.
Joel B. Adams, Asheville, N.C. (Adams & Adams, Asheville, N.C., on brief) for petitioner.
L. W. Post, Sp. Asst, to the Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., and Ellis N. Slack, Sp. Asst, to the Atty. Gen., on brief) for respondent.
Before PARKER, SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This petition for review relates to a decision of the Tax Court of the United States in which a deficiency of $4-59.40 in the income and victory tax for the year 1943-, and a deficiency of $12221.05 in the income tax for the year 1944 was adjudicated against the petitioner.
Edith Moorhead Bryant, the taxpayer, was one of the beneficiaries and the remainderman of a trust estate created by the will of S. E. Moorhead, her father, a resident of New Yorle who died in 1941. He bequeathed 2500 shares of stock of Liggett & Myers Tobacco Company to the Guardian Trust Company of New York in trust to pay out of the income therefrom or from the principal, if necessary, $10,000 annually to his wife for her life, and to pay the balance of the income, if any, to his daughter. Upon -the death or remarriage of the widow the trustee was directed to pay over the principal of the trust fund, less statutory commissions, to his daughter.
The widow died on October 17, 1943, but the estate was not transferred to- the taxpayer until April 3, 1944 when the trustee delivered the entire corpus to the taxpayer. The trustee collected $8857.30 of income in 1943 and $1837.58 of income in 1944. Out of the income for 1943 the trustee paid to the widow before her death and to- her estate after her death the aggregate sum of $7945.20 (less commissions), which represented the -proportionate part of $10,000 due her for the period from January 1 to October 17, 1943. Out of the balance of the income the trustee paid state and federal income taxes on capital gains, expenses incurred in the termination of the ■trust, consisting of trustee’s commissions, attorney’s fees, transfer taxes and express charges, and also paid the trustee’s commissions . on income. These payments amounted in all to $4707.12, leaving only $186.71 remaining in its hands. This sum, together with the corpus, was paid and delivered to the taxpayer on or about April 3, 1944. No- part of the principal or income from the estate was paid to the taxpayer prior to that date.
An instrument in the form of a receipt, release and indemnification was executed between the Trust Company, the taxpayer and the executors of the esate of the widow, which recited that the taxpayer had paid to the trustees the sum of $4461.81 to enable the trustee to avoid the necessity of liquidating any of the securities of the trust estate for the purpose of paying the income due the estate of the widow and the commissions due the trustee and other termination charges. No- payment, however, was in fact made by the taxpayer to the trustee, but the expenditures referred to were paid solely out of the income as previously stated.
The Tax Court held that none of the ■ payments made by the Trustee were properly deductible from the income due the taxpayer except the income due the widow for the year 1943, the income taxes due the State of New York, and the trustee’s commissions on income, and that hence the remainder of income in\he trustee’s hands, amounting to the sum of $596.61 for the year 1943 and the sum of $1752.72 for the year 1944 represented income which was currently distributable to the taxpayer. The taxpayer contends that this decision was wrong because she actually received only $186.71 as income from the trust estate in 1943 and 1944, and that only this amount was currently distributable to her within the meaning of Section 162(b) of the Internal Revenue Code, 26 U.S.C.A. § 162(b), which provides in effect that in computing the net income of an estate for income tax purposes, the amount of the income for the taxable year which is to be distributed currently to the beneficiaries may be deducted; but the amount so allowed as a deduction shall be included in computing the net income of the beneficiary whether distributed to them or not.
The decision of the case is not controlled by the erroneous statement in the agreement of settlement between the trustee and the taxpayer that the taxpayer furnished the funds which enabled the trustee to defray taxes and termination charges without selling any of the corpus of the trust; nor by the fact that the trustee actually used income of the trust to pay these expenses so that the taxpayer received only a small part of the income in the taxable years. The test of taxability is not the receipt of income but the right to receive it. Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634 and the right to receive the income of a trust depends upon the terms of the trust instrument and governing state law. Commissioner v. Lewis, 3 Cir., 141 F.2d 221; Abell v. Tait, 4 Cir., 30 F.2d 54; Ardenghi v. Helvering 2 Cir., 100 F.2d 406, certiorari denied 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1501; United States v. Blosser, 8 Cir., 104 F.2d 119. The Tax Court followed the established rule in New York that only those expenses properly chargeable against income are deductible from income and those expenses chargeable against corpus are deductible from corpus. In re Petremont’s Will, 213 App.Div. 3I8, 210 N.Y.S. 379; affirmed 241 N.Y. 586, 150 N.E. 566; Matter of Eddy’s Will, 207 App.Div. 162, 201 N.Y.S. 760, 761; In re Marvin’s Estate, 135 Misc. 899, 241 N.Y.S. 500; In re Chave’s Estate, 227 App.Div. 554, 238 N.Y.S. 678. The testator’s intention in this respect, as shown by the terms of the will, was in accord with this rule for it expressly directed the trustee at the termination of the trust upon the death of the widow to “deliver the principal of said trust fund or so much thereof as then remains, less statutory commissions” to' his daughter. It therefore became the duty of the trustee at the termination of the trust to pay the capital expenses from the corpus in accordance with the local rule in New York.
The trustee was of course entitled to a reasonable time in which to settle the trust estate after the death of the widow and in the meantime the trust estate was a taxable entity; Commissioner v. First Trust & D. Co., 2 Cir., 118 F.2d 449; Frederich v. Commissioner, 5 Cir., 145 F.2d 796, 157 A.L.R. 841; but the will contemplated that upon the death of the widow the corpus should belong to the taxpayer and it follows that the income on the corpus thereafter collected by the trustee during the taxable years belonged to and was currently payable to the taxpayer after the widow’s share of the income for 1943 and the expenses attributable to income had been set aside. The amount of these deductions are not disputed in this case.
In Commissioner v. First Trust & D. Co., supra, upon which the taxpayer depends, the court held that the income was not distributable to the beneficiaries by reason of the terms of the will. In Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670, it was held that in com-pitting the taxable income of a trust which imposed the duty upon the trustee to maintain and administer the estate for a period of twenty-one years, the expenses incurred by the trustee in the distribution of the corpus were deductible as expenses of management; but in that case the court was not considering the tax liability of distributees of income but the fax liability of the-trust estate, and the taxable entity was the estate and not the distributees thereof. Deductions allowable to an es-state are not available to beneficiaries unless the tax statute so provides. Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 77 L.Ed. 1004; New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348. In Sitterding v. Commissioner, 4 Cir., 80 F.2d 939, the income of the estate pending the settlement thereof was not payable to the legatees under the will, and the court-found that the amount of the income in the hands of the executor was not enough to pay the state and federal taxes which under the Revenue Act of 1928 were deductible from the gross income of estate. In short it was held that no income taxes were due either by the estate or the legatees. See the comment on this case iii Ardenghi v. Helvering', supra.
We find nothing in these decisions in conflict with the Tax Court’s decision and it is therefore affirmed.
. This sum exceeded the amount held by the Commissioner to be distributable to tbe taxpayer in 1944, but since no increased deficiency was requested, the Tax Court accepted the Commissioner’s figure.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_casetyp1_7-3-6
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - property disputes".
Hazel COBB, Appellant, v. Pete GILMER, Appellee.
No. 19845.
United States Court of Appeals District of Columbia Circuit.
Argued March 17, 1966.
Decided July 11, 1966.
Mr. Dorsey Evans, Washington, D. C., for appellant.
Mr. William Reback, Washington, D.C., for appellee.
Before Bazelon, Chief Judge, DanAher and Wright, Circuit Judges.
BAZELON, Chief Judge:
This case involves the title to certain property located in the District of Columbia which was deeded to the original parties in this suit, Naomi Zachary and Pete Gilmer, as tenants by the entirety. In 1962 the parties, who had participated in a marriage ceremony in 1947, discovered that Naomi Zachary had never been legally divorced from her former husband Roy Zachary. Naomi Zachary subsequently instituted the present suit seeking judgment quieting title to the property in her name. Prior to trial she died, and her daughter, who was substituted as plaintiff, thereupon amended the complaint to request partition of the property as alternative relief. At the conclusion of the trial, the court, sitting without a jury, held that the defendant Gilmer had sole title to the property. This appeal followed.
Appellant, the substituted plaintiff below, first argues that the trial court misapplied the rule of Coleman v. Jackson, 109 U.S.App.D.C. 242, 286 F.2d 98, 83 A.L.R.2d 1043 (1960), cert. denied, 366 U.S. 933, 81 S.Ct. 1656, 6 L.Ed.2d 391 (1961). In that case we held that where the parties to a deed were disabled from holding property as tenants by the entirety, a joint tenancy is deemed to have been created unless a contrary intent is shown. Here the trial court found that the plaintiff had failed to prove by a preponderance of the evidence the requisite contrary intent. Since this finding was not clearly erroneous, we sustain the trial court’s conclusion that the property was held in joint tenancy and that title passed to defendant Gilmer on the death of the original plaintiff Zachary,
L2, 3] Appellant also argues that the original complaint in this suit comprehended a claim for partition. On this basis she challenges the trial court’s conclusion that the partition action abated on the death of the original plaintiff. Assuming, without deciding, that a prayer for judgment quieting title is broad enough implicitly to contain a partition claim, we find no merit in the argument. Although we have been unable to find a case on point in this jurisdiction, the apparently universal rule in this country is that a pending suit for a partition of a joint tenancy does not survive the death of one of the tenants. This rule is compelled by two related concepts: first, the theory of survivor-ship — that at the moment of death title to the property vests exclusively in the surviving joint tenant or tenants ; and second, the doctrine that severance of the joint tenancy does not occur until the suit for partition reaches final judgment. Therefore, unless partition has been decreed before the death of the joint tenant, no interest in the property remains in the representatives of the decedent which can support an action for partition.
Appellant contends that the District’s survival statute, D.C.Code § 12-101 (Supp. IV, 1965), has altered this common law rule. This statute speaks in terms of a “right of action [which] has accrued for any cause prior to * * * death * * This phrasing obviously envisages a pre-existing invasion of a legal right or duty. But a suit for partition of a joint tenancy does not depend upon the existence of a prior legal wrong; it may be had as a matter of right at the instance of any joint tenant, subject only to equitable considerations. Partition of a joint tenancy thus is not a “right of action” of the type contemplated by the statute. Moreover, if the ability to demand partition survived the death of a joint tenant, his representatives could always bring an action for partition, thereby destroying the concept of survivorship which is the essence of the tenancy. We therefore hold that the District’s survival statute is inapplicable to suits for partition of joint tenancies
Affirmed.
. Thus we need not decide whether the amendment to the complaint which specifically requested partition “related back” to the original complaint.
. E. g., Sheridan v. Lucey, 395 Pa. 305, 149 A.2d 444 (1959); Minnehan v. Minnehan, 336 Mass. 668, 147 N.E.2d 533 (1958); Teutenberg v. Schiller, 138 Cal.App.2d 18, 291 P.2d 53 (Dist.Ct.App. 1955); Dando v. Dando, 37 Cal.App.2d 371, 99 P.2d 561 (Dist.Ct.App.1940); Shuck v. Shuck, 413 Ill. 390, 108 N.E.2d 905 (1952); Ellison v. Murphy, 128 Misc. 471, 219 N.Y.S. 667 (1927); Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927); 4 Thompson, Real Property § 1781 (repl. ed. 1961); Annot., 129 A.L.R. 813, 817 (1940); Annot., 64 A.L.R.2d 918, 956 (1959); 48 C.J.S. Joint Tenancy § 4 (1947). See also Child v. Bulmer, [1891] 3 Ch. 59.
. See, e. g., Maynard v. Sutherland, 114 U.S.App.D.C. 169, 313 F.2d 560 (1962).
. See, e. g., authorities cited in note 2 supra; 4 Thompson, Real Property §§ 1779-1781 (repl. ed. 1961); 2 Tiffany, Real Property §§ 419, 428 (1939).
. See, e. g., 4 Thompson, Real Property §§ 1822-1823 (repl. ed. 1961); 2 Tiffany, Real Property §§ 473-475 (1939).
. Cf., e. g., Metzger v. O’Donoghue, 53 App.D.C. 107, 288 F. 461 (1923); Dingman v. Henry, 51 App.D.C. 339, 279 Fed. 795 (1922).
. See Sheridan v. Lucey, supra note 2.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
|
songer_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Annie K. PEAKE et al., Appellants, v. LINCOLN NATIONAL LIFE INSURANCE COMPANY.
No. 9111.
Circuit Court of Appeals, Eighth Circuit.
Jan. 26, 1931.
See, also, 10 E.(2d) 366; 15 F.(2d) 303.
George W. Humphrey and James W. Broaddus, both of Kansas City, Mo., for appellants.
William C. Michaels, of Kansas City, Mo., for appellee.
PER CURIAM.
Appeal docketed and dismissed at costs of appellants, but without taxation of attorney fee, per stipulation of parties.
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_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
REAVIS v. UNITED STATES.
No. 1538.
Circuit Court of Appeals, Tenth Circuit.
Dec. 20, 1937.
David Tant, of Oklahoma City, Okl., and W. F. Duncan, of Watonga, Okl., for appellant.
William C. Lewis, U.S.Atty., and Wade H. Loofbourrow, Asst.U.S.Atty., both of Oklahoma City, Okl.
Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.
LEWIS, Circuit Judge.
Appellant and' Marvin Carroll were charged by indictment: (1) with possession and control of a still set up for use by them in the manufacture of distilled spirits, said still not having been registered; (2) with making and fermenting mash fit for distillation or production of spirits or alcohol on premises other than those of a distillery authorized by law; (3) with defraudingl( or attempting to defraud the United States of the tax required by law to be paid upon spirits distilled by them, they being then and there engaged in carrying on the business of a distiller; and (4) with having in their possession and under their control distilled spirits, to-wit, whiskey the immediate containers of- which did not then and there bear stamps denoting the quantity of distilled spirits therein contained evidencing payment of all interpal revenue taxes imposed and required by law to be paid on said spirits, contrary to statutes in such cases made and provided. Carroll pleaded guilty. Appellant went to trial, was convicted on each of the four counts, and was sentenced. He appeals.
The only matter presented by appellant for our consideration is the charge to the jury by the District Judge on the subject of an alibi to which exception was saved thus: “to that part of the court’s charge on the defendant’s defense of an alibi, and particularly that part of the court’s charge wherein the court criticized the defense of an alibi as being an unsatisfactory defense.” As to the alibi the court said:
“Now in this case, as to the evidence, we have a direct and positive conflict. The sheriff of Blaine County testified that he has known Reavis for many years; that as soon as he heard his voice he recognized him, and that he saw him when the flash light was thrown upon his face. Practically the same testimony was given by the undersheriff, and both testified positively it was Otto Reavis; that there was no doubt in their minds at all; that they were positive. * * * They further testified that he was riding a black horse; that they recognized the horse, and that they traced the horse’s foot prints up to the barn lot; that they went on up to the lot that night and saw the horse in the lot; saw a saddle that had been thrown down there at the barn; they went in the house and Otto Reavis was in bed and they arrested him. * * *
“Now on the other hand, the defendant denies positively that he was there, that he had anything to do with that still or that he knew anything about this transaction. He said he never was at the still until the officers took him up there after the arrest. The co-defendant Carroll says that this man had nothing to do with the still; that he was running it for a man named Krause, who lived in Kansas. * * * The other testimony is largely in the nature of an alibi, that at the time this man was supposed to have been down at the still he was up at the house in bed asleep. An alibi is a very unsatisfactory type of testimony. It is unsatisfactory for the reason it does not give the opposing side any notice of its character until it is too late to get witnesses to meet it, ordinarily. In this case, the mother said that the boy was there that night. The sister-in-law says he was. there that night. The brother of this defendant says he was there when he was there, so it comes right down to the proposition that all these witnesses cannot be telling the truth. Somebody is mistaken, or somebody is testifying falsely.
“So the question for you to determine is which one of thesevgroups is testifying falsely and which one is not.”
None of the evidence, verbatim or in substance, is included in the bill of excep- . tions except as it is embodied in the court’s instructions to the jury. The bill of exceptions recites that: “the government introduced testimony in support of its indictment. Whereupon, the defendants introduced testimony tending to show that he was at another and a different place at the time the government witnesses claimed to have seen him.” The Judge’s certificate to the bill of exceptions states that it, “contains the proceedings had, all the evidence offered, admitted, or adduced at the trial of the said cause, together with all exceptions taken which are applicable to the questions raised on this appeal.” The defendant in stating the objection and exception to the court’s instruction said: “We would like to object to and reserve an exception to that part of the court’s charge on the defendant’s defense of an alibi, and particularly that part of the court’s charge wherein the court criticized the defense of an alibi as being an unsatisfactory defense.” Whereupon the court said: “Very well, exceptions allowed. (Hereupon the jury retires to consider its verdict.)”
It thus appears from the bill of exceptions that the testimony which the District Judge certified as having been introduced by the defendant was, in the court’s opinion, “in the nature of an alibi”, being testimony “tending to show that the defendant was at another and different place at the time the government witnesses claimed to have seen him.” Viewed in that way only it would be applied by the jury to a mere conflict in the testimony. But it further appears that defendant’s counsel in making his objection stated that defendant’s testimony to establish an alibi was a defense to the charges against him. Viewed in that way it alone would be a complete and absolute defense, if established to the satisfaction of the jury; or if considered in connection with the other • fact’s and circumstances it might have raised in the minds of the jury a reasonable doubt entitling the defendant to an acquittal. The jury should have been so instructed. Glover v. United States, 8 Cir., 147 F. 426, 8 Ann.Cas. 1184; Falgout v. United States, 5 Cir., 279 F. 513; Louie Ding v. United States, 9 Cir., 246 F. 80; United States v. Vigorito, 2 Cir., 67 F.2d 329; Cangelosi v. United States, 6 Cir., 19 F.2d 923; Com. v. Webster, 5 Cush., Mass., 295, 319, 52 Am.Dec. 711; Com. v. Choate, 105 Mass. 451; Thompson on Trials, vol. 2, § 2433 et seq.; Greenleaf on Evidence, 15th Ed., vol. 1, note to section 80; Id., vol. 3, § 30; Wigmore on Evidence, 2d Ed., § 2512; The Modern Law of Evidence by Chamberlayne, vol. 2, § 973.
There are two main issues that arise in every criminal case which the prosecution must prove beyond a reasonable doubt: First, the corpus delicti; and' Second, the defendant’s connection with the perpetration of the crime.
The Judge’s statements of the facts in his instructions to the jury indicated that a federal agent was with the sheriff and his deputy on the night or late evening at the still. Fie declined to testify that he saw Reavis. Fie said he saw the man who came only faintly that night and was not able to identify him in the court room. Carroll and the appellant both testified that the appellant had' nothing to do with the still. The court said to the jury:
“The only other circumstances which tend to connect Reavis with this transaction aside from the fact that it was there adjoining his farm, in close proximity to the farm, was the statement of the co-defendant, Carroll. The revenue agent testified that Carroll said that night ‘that old horse Otto is riding is so old it is a wonder he don’t fall down.’ Carroll denies that statement.”
We cannot agree that the proximity of the still to Reavis’ farm or the statement attributed to Carroll by the federal agent had any tendency whatever to prove that, appellant was a party to the commission of any of the four offenses charged against him. Nor for that purpose can we attribute any weight to the fact, if it be a fact, that he rode up to the still on the occasion stated. On the record brought here it is our opinion that there should have been instructed verdicts of not guilty.
Reversed and remanded.
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_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.
Mary G. BRUCE, Administratrix of the Estate of Walter B. Bruce, Deceased, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a corporation, Appellee.
No. 6956.
United States Court of Appeals Fourth Circuit.
Argued April 20, 1955.
Decided May 10, 1955.
Robert N. Simms, Jr., and Clyde A. Douglass, Raleigh, N. C. (John M. Simms, Raleigh, N. C., on brief), for appellant.
Murray Allen, Raleigh, N. C. (R. P. Upchurch, Raleigh, N. C., on brief), for appellee.
Before PARKER, C. J., and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This suit is brought by the Adminis-tratrix of Walter B. Bruce, deceased, against Lumbermens Mutual Casualty Company to secure a judgment in the sum of $10,000 under a policy of insurance issued to W. L. Aldridge, Jr. and O’Neals Flying Service, Inc. The declarations in the policy disclose that the business of the assured is the use of aircraft for business and pleasure, instruction of students, and commercial and passenger carrying for hire, and that the aircraft would be used in the United States, Canada and 100 miles into Mexico. The Insurance Company agreed in the policy, amongst other things, to pay on behalf of the insured all sums which the insured should become obligated to pay because of bodily injury sustained by any passenger while in or upon, entering or alighting from the aircraft, caused by accident and arising out of the ownership, maintenance or use of the aircraft.
Liability to a passenger was incurred by the insured on June 1, 1947, during the life of the policy, when Walter B. Bruce, the deceased, was killed while riding as a passenger in a plane covered by the policy. The accident occurred during an air show at the flying field of the insured for which admission was charged. Three planes were sent up, each designed to carry two passengers. Bruce went up with the pilot as a passenger in the lead plane. The plan was that the planes were to be put into spiral spins in a demonstration of safe flying. Such maneuvers are deviations from normal flight, and are known in the industry as aerobatic flights. The plane in which the deceased was a passenger took part in the maneuvers as planned but fell to the ground and crashed, and both occupants were killed.
At the time certain regulations were in effect which had been passed by the Civil Aeronautics Authority, the agency of the United States in charge of the operation of civilian aircraft in the United States under the provisions of 49 U.S.C.A. § 401 et seq. Section 60.9 of Part 50 of the Civil Air Regulations as to Air Traffic Rules defined the term aerobatic as “the performance of any intentional and unnecessary maneuvers involving an abrupt change in altitude of an aircraft, an abnormal altitude, or an abnormal speed.” Part 43 of Civilian Air Regulations General Operation Rules contained the following paragraph. “43.-409. Aerobatic Flight. No pilot shall intentionally fly an aircraft in aerobatic flight carrying passengers unless all occupants are equipped with approved parachutes.” Neither of the occupants of the plane which crashed was equipped with a parachute. The evidence, however, shows that parachutes would have been of no avail to save the lives of the occupants, because the pilot continued to execute the spins until the plane was so near the ground that parachutes could not have been used effectively.
The administratrix of the estate of the deceased brought a wrongful death action against the Flying Service in the Superior Court of Wake County, North Carolina, and secured a judgment in the sum of $15,600 which was affirmed on appeal. Payment of the judgment was demanded and refused, and subsequently the present action against the Insurance Company was brought and resulted in a judgment in its favor. D.C., 127 F. Supp. 124. This appeal of the adminis-tratrix ensued.
The defense to the present suit in the trial court and on this appeal is based on the ground that the accident was not covered by the policy, but was within an exclusion of the policy which provided in effect that the policy should not apply “(d) to liability with respect to bodily injury or damage caused by the operation of the aircraft with the knowledge of the named insured; (1) if used for any unlawful purpose, or, during flight or attempt thereat, in violation of any government regulation for civil aviation.” There is no doubt that the plane in which the deceased was killed was operated in violation of the quoted regulation, since the pilot did intentionally fly the aircraft in aerobatic flight with a passenger and the occupants were not equipped with approved parachutes. The appellant contends, however, that this exclusion does not apply in the present case (1) because the only exclusions applicable to passengers are found in subsequent provisions of the policy and do not preclude the present claim, and (2) because there was no causal connection between the violation of the regulation and the fatal crash.
The subsequent exclusions in the policy refer in express terms to Coverage A-Bodily Injury Liability, Excluding Passengers, Coverage B-Bodily Injury Liability — Passengers, and Coverage C-Property Damage Liability. Under Coverage B it is provided that the policy does not apply “to liability with respect to bodily injury to any passenger caused by the operation of the aircraft with the knowledge of the named insured: (1) during flight or attempt thereat, between sunset and sunrise unless all night flying requirements of the Civil Aeronautics Authority are complied with; (2) if the aircraft is carrying passengers in excess of the policy passenger capacity as stated in the declarations, or is loaded in excess of the gross weight permitted by the Civil Aeronautics Authority in the Type Certificate issued for the make and type of the aircraft, or in the certificate issued to the aircraft, whichever is more limited.”
It is conceded that the last mentioned exclusions do not of themselves preclude recovery in this case since the flight in question did not take place at nighttime and there was no carriage of passengers in excess of the capacity of the plane. It is therefore contended that since these exclusions refer in express terms to the liability of the insured for bodily injury to passengers, they should govern the decision of this controversy rather than the general exclusion first above described.
The appellant invokes the rule, as set out in 17 C.J.S., Contracts, § 312, that the expression in a contract of things of a class implies the exclusion of all not expressed, even though all would have been implied had none been expressed. The rule is generally given effect when a clause which sets out with particularity the subject matter that the parties have in mind is followed by a clause expressed in general terms, in which case the latter is controlled or restricted by the former; Cleveland Trust Co. v. Consolidated Gas, E. L. & P. Co., 4 Cir., 55 F.2d 211 and where there is an inconsistency between general provisions and specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions. See Restatement of Contracts § 236 (c); Southern R. Co. v. Coca Cola Bottling Co., 4 Cir., 145 F.2d 304; Fox Realty Co. v. Montgomery Ward & Co., 7 Cir., 124 F.2d 710, 714; Southern Surety Co. v. Town of Greenville, 6 Cir., 261 F. 929, 932; Nance v. Southern R., 149 N.C. 336, 371, 63 S.E. 116; In re Steelman, 219 N. C. 306, 13 S.E.2d 544.
This rule, however, is subject to the general standards applied in the interpretation of contracts which require that an interpretation which gives a reasonable effect to all the manifestations of intention in an agreement is preferred to an interpretation which leaves a part of such manifestations unreasonable or of no effect; Restatement of Contracts § 236(a); or as said in 17 C.J.S., Contracts, § 313, if both general and special provisions may be given reasonable effect, both are to be retained.
It is noteworthy that there is no conflict between the particular and the general exclusions of the policy set out above. It is true that there would seem to have been no need to exclude from the risk the specific violations of the regulations of the Civil Aeronautics Authority contained in the particular clauses in view of the sweeping terms of exclusion (d) which excludes from coverage any liability for bodily injury caused by any operation of the plane in violation of any government regulation for civil aviation; but each class of exclusions may be given effect without impairing the force of the other.
More impressive in this connection is the distorted result which would follow if the general exclusions relating to passenger injuries should be restricted to those which are particularized. Heretofore we have referred only to paragraph (d) (1) of the general exclusions, but there are additional paragraphs under this head. Thus, paragraphs (d)2 and (3) exclude from coverage liability for bodily injury caused by operation of the aircraft if its Civil Aeronautics Authority’s certificate has been revoked or suspended, or if the certificate of the pilot has been restricted, revoked, suspended or has expired. It is unreasonable to suppose that the Insurance Company was willing to assume the great risk of injury to passengers involved in the operation of a plane whose certificate had been revoked or suspended, or whose pilot’s right to operate the plane had been withdrawn by government authority, and intended to confine its exclusions as to passengers to flying at night and to the carriage of passengers in excess of the capacity of the plane in violation of the regulations. Since there is no ambiguity in the policy and no conflict between its provisions, all parts of the contract should be given effect. Stanback v. Winston Mutual Life Ins. Co., 220 N.C. 494, 17 S.E.2d 666; Lineberry v. Security Life & Trust Co., 238 N.C. 264, 267, 77 S.E.2d 652.
The second contention of the appellant, that the judgment must be reversed because no causal connection between the violation of the regulations and the accident was shown, must also be rejected. The clear meaning of the policy is not as the appellant suggests that the risk is excluded if the injury is caused by a violation of the regulations, but that the risk is excluded if the injury is caused by the operation of the plane while it is being used in violation of the regulation. It is established by the great preponderance of authority in the decisions of this and other courts that an insurer need not show a causal connection between the breach of an exclusion clause and the accident, if the terms of the policy are clear and unambiguous, since the rights of the insured flow from the contract of insurance and not from a claim arising in tort. See Myers v. Ocean Accident & Guarantee Corp., 4 Cir., 99 F.2d 485, 491 and cases cited.
In Travelers’ Protective Ass’n of America v. Prinsen, 291 U.S. 576, 54 S. Ct. 502, 78 L.Ed. 999, the evidence showed that an explosion took place as the result of a collision between a motor truck containing dynamite and a train, and the occupants of the truck were killed. Suit was brought on a policy of insurance which excluded liability for death of a person which occurs in the transportation of explosives, and it was contended that the insurer was liable because the death of the occupants of the truck might have been caused by the collision without more. The court rejected the contention, 291 U.S. at pages 581-582, 54 S.Ct. at page 504, saying: “The contract does not say that the holder of the policy is to have no claim against the insurer if he dies ‘by reason of’ his participation in the carriage of explosives. The contract says that he is to have no claim against the insurer if he dies ‘when’ he is participating in the carriage of explosives, just as it provides for a like result when he is acting as a sailor or a soldier, or is participating in war or riot, or is under the influence of narcotics or of intoxicating liquors. Courts of high authority have held that in policies so phrased there is no need of any causal nexus between the injury or death and the forbidden forms of conduct. While the proscribed activity continues, the insurance is suspended as if it had never been in force.”
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_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mary GLOVER; Lynda Gates; Jimmie Ann Brown; Mannetta Gant; Jacalyn M. Settles, and several Jane Does on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Perry JOHNSON, Director, Michigan Department of Corrections; Florence R. Crane; G. Robert Cotton; Thomas K. Eardley, Jr.; B. James George, Jr.; Duane L. Waters, Michigan Corrections Commission; William Kime, Director Bureau of Programs; Robert Brown, Jr., Director, Bureau of Correctional Facilities; Frank Beetham, Director, Bureau of Prison Industries; Richard Nelson, Director, Bureau of Field Service; Gloria Richardson, Superintendent, Huron Valley Women’s Facility; Dorothy Costen, Director of Treatment, Huron Valley Women’s Facility; and Clyde Graven, Sheriff, Kalamazoo County, Individually, and in their official capacities, Defendants-Appellants.
Nos. 86-2125, 87-1466.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 24, 1987.
Decided Aug. 22, 1988.
Susan A. Harris (Lead Counsel) (argued), Asst. Atty. Gen., Detroit, Mich., Keith D. Roberts, Lansing, Mich., for defendants-appellants in No. 87-2125.
Charlene Snow (argued), Deborah La-Belle, Detroit, Mich., for plaintiffs-appel-lees in No. 87-2125.
Frank J. Kelley, Atty. Gen., Corrections Div., Susan Harris (argued), Asst. Atty. Gen., Corrections Div., Lansing, Mich., for defendants-appellants in No. 87-1466.
Charlene Snow, Deborah LaBelle (argued), Detroit, Mich., for plaintiffs-appel-lees in No. 87-1466.
Richard Meisler, for University of Mich.
Before ENGEL, Chief Judge, and MERRITT and RYAN, Circuit Judges.
The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988.
RYAN, Circuit Judge.
This is an appeal from two orders entered in a class action brought by female inmates of the Michigan prison system, claiming the denial of equal protection of the law in the provision of educational opportunities to female inmates in the Michigan prison system. The orders were separately appealed and are consolidated for review.
In the first of the two orders appealed from (86-2125), the district court:
(a) Ordered defendants to “provide a four-year degree program” leading to a baccalaureate degree for four named members of the plaintiff class residing at the Florence Crane Correctional Facility.
(b) Enjoined defendants from transferring any female inmates from the Crane Facility to the Huron Valley Women’s Facility for the purpose of enabling female inmates “to receive four-year degree programs”; and
(c) Ordered defendant to “continue in its efforts to offer four-year degree programs to all other interested prisoners incarcerated at the Florence Crane Facility.”
In the second order appealed from (87-1466) 659 F.Supp. 621 (1987), the district court appointed an administrator to “design and implement educational programs for female inmates on a parity with male inmates” in the Michigan correctional system.
The orders are challenged on a number of grounds, principally as being beyond the district court’s proper authority given the state of the record, considerations of comity and federalism, and the requirements of Fed.R.Civ.P. 52(a).
We do not reach the merits of the substantive legal and equitable challenges to the district court’s orders. Instead, we vacate the preliminary injunction because it is not supported by minimally sufficient findings of fact, and we set aside the order appointing the administrator because we are not presented with an evidentiary record demonstrating sufficiently compelling justification, given considerations of comity and federalism, for the extreme intrusiveness into the constitutional prerogatives of a state agency that results from the order appointing an administrator.
I.
This litigation has been pending for more than ten years. It is unnecessary, and probably impossible, to fully and accurately detail the entire history of this vigorously, sometimes bitterly, contested controversy. Nevertheless, a brief review of that portion of the litigation relevant to the orders appealed from is necessary to our decision.
In May of 1977, plaintiffs filed a class action in the United States District Court for the Eastern District of Michigan alleging that male inmates at Michigan prisons were afforded education and training opportunities, including a two-year associate degree and a four-year baccalaureate degree program, not afforded to female inmates, in violation of the equal protection clause of the fourteenth amendment of the federal Constitution. A number of other allegations of unfair discriminatory and disparate treatment were made that are not relevant to these appeals.
When the lawsuit was filed, female inmates in Michigan were housed only at the Huron Valley Women’s Facility. In October of 1979, the district court issued a lengthy and wide-ranging opinion and order which included highly detailed findings of fact. The court ordered, among other things, that “the State” provide to female inmates at the Huron Valley Women’s Facility a two-year post-secondary education program leading to an associate’s degree, comparable to the program then being offered to male inmates at the state prison of Southern Michigan (Jackson). The district court’s order did not specifically require that a four-year degree program be instituted for women inmates, although such a program was being offered for male inmates at Jackson. The order stated that the state “may encourage the development of such a program in whatever manner available in light of its overall responsibility for educational programming at the facility.” Glover v. Johnson, 478 F.Supp. 1075, 1102 (E.D.Mich.1979) (Glover I).
In April 1981, the district court issued its “Final Order” which it described as having been “arrived at by agreement of counsel for the parties.” Glover v. Johnson, 510 F.Supp. 1019, 1020 (E.D.Mich.1981) (Glover II). The court reiterated that comparable education programs for men and women were to be provided at the Huron Valley Women’s Facility, and stated:
[T]hat the State, while not obligated to provide a four-year baccalaureate program at Huron Valley Women’s Facility, shall assist and cooperate in the establishment and operation (including the provision of space) of a baccalaureate program which any four-year college desires to offer women inmates; and in no way shall that assistance be less than that provided to colleges offering baccalaureate programs at men’s prisons.
Glover II, 510 F.Supp. at 1021. The court required that the defendants file quarterly progress reports for five years “or until such time as the Court finds defendants are in compliance.” Id. The court held status conferences with counsel for the parties in 1981, 1982, and 1984.
In April 1985, the Department of Corrections opened the Florence Crane Correctional Facility for Women at Coldwater, Michigan. During the next several months, approximately 340 women were transferred to Crane from the overcrowded Huron ValleyyFacility, including some inmates who bad been eligible to participate in the third and fourth year baccalaureate program thatNhad been offered intermittently since 1980 at Huron Valley by Eastern Michigan University.
The parties sharply disagree about the facts relating to the availability of educational opportunities to inmates at Huron Valley, about the causes for the unavailability of education programs at Florence Crane, and about the defendant’s efforts to comply with the district court’s 1979 and 1981 orders. We are handicapped in determining whose version of the facts is correct because of the sparsity of an evidentiary record, and the absence of adequate fact-finding by the district court. However, some facts necessary to an understanding of what we decide today appear to be incontrovertible.
Spring Arbor College, a private degree granting institution located not far from Jackson Prison, has provided a four-year degree program to male inmates at Jackson continuously since 1979. Indeed, it was the absence of a comparable program for women at Huron Valley that was one of the motivating causes for this lawsuit. Funding for the program at Jackson was provided mainly through federal funds in the form of PELL grants. Since 1984, Spring Arbor College also received state funds under a Michigan Department of Education program providing reimbursement to that school for degrees issued to Jackson Prison inmates. 1984 Mich.Pub.Acts 238 § 21(a). Eventually, because Spring Arbor College was conferring approximately forty bachelor degrees a year upon Jackson inmates, the college received an annual “straight line item” appropriation of $120,-000 from the state of Michigan, representing the statutorily authorized $3,000 per graduate. Although the defendants provided no funds in support of the Spring Arbor program, they were, of course, aware of the funding and accommodated the class offerings at Jackson by providing classroom space and facilities and cooperatively arranging inmates’ schedules. The defendants claim that no comparable education programming was offered at any of the state’s other male correctional institutions. The plaintiffs disagree and claim education programs were offered in at least one other correctional facility for men.
For one reason or another, no college or university has ever offered a regular four-year degree program at the Huron Valley Women’s Facility, although one school provided three semesters of college classes at Huron Valley between 1980 and 1984. Plaintiffs attribute the absence of a regular and continuous baccalaureate program to the defendants’ “intransigence” and “obduracy.” Defendants attribute it to an absence of sufficient inmate interest and a lack of private, federal, or state funding.
In the spring of 1985, some baccalaureate program courses were offered at Huron Valley, paid for with funds authorized by defendant Perry Johnson, then Director of the Department of Corrections. No classes were offered at Huron Valley in the fall of 1985, due in part, apparently, to the fact that Eastern Michigan University had offered a number of courses in 1983 and had not been paid for its services. As a result, several student inmates had not received grades for credits earned in those courses. The problem was eventually rectified and the inmates received the credits they had earned.
No educational programs of any kind have ever been offered at the Florence Crane Facility. Defendants claim it is because there has been an insufficient showing of interest among the Crane inmates to meet the requirements of the two colleges whose services defendants have solicited, and who insist that at least fifteen students must register for any course offered in either the two-year associate degree or four-year baccalaureate programs. Plaintiffs contend that at least fifty women at Crane “were interested” in a community college program and that the only reason a four-year degree program is not offered at Crane is because the defendant simply refuses to provide it. Once again, the trial court has made no specific findings of fact about the matter.
In January 1986, impatient with the lack of progress toward compliance with the district court’s orders, the plaintiffs filed a motion for contempt, alleging noncompliance “in all aspects of the 1979 and 1981 orders.” Hearings were held in March, June and July of 1986. The district court took the motion for contempt under advisement and has not, to date, ruled on it.
In October 1986, classes were once again offered at the Huron Valley Women’s Facility but none were offered at Crane. Four inmates at Crane who were eligible to participate in the four-year degree program, and who expressed interest in participating in such a program, were given the opportunity to transfer to Huron Valley so that they might participate in the four-year degree program there. The defendants argued that transfer of the inmates to Huron Valley was necessary since no school was interested in offering a four-year degree program at both Crane and Huron Valley, given the small number of interested participants at Crane. The four inmates declined to be transferred, and the plaintiffs immediately filed a motion for a temporary restraining order requesting the court to restrain the defendants from transferring the four inmates to Huron Valley, and to mandate that a four-year degree program be offered for the four inmates at Crane. At oral argument on the matter, defendants argued that the court’s 1981 order did not require it to offer an educational program at Crane and that, in all events, it was economically infeasible to offer a baccalaureate degree program at both women’s institutions. The plaintiffs argued that the defendants were merely engaging in delaying, evasive, and contumacious tactics to avoid compliance with the district court’s 1981 order. The court issued a preliminary injunction enjoining the defendants from transferring the four inmates at Crane to Huron Valley and requiring that the defendants implement a four-year baccalaureate degree program at Crane immediately. It is that injunctive order which is appealed from in case number 86-2125.
The defendants represent to this court that despite genuine effort on their part, they have been unable to interest any educational institution in offering a four-year baccalaureate program at the Crane facility. They represent further that the Department of Education, which is not a party to this action, will no longer provide tuition reimbursement for the degree program now provided for male inmates at Jackson Prison and that, as a result, there will be no four-year degree program offered to male inmates in any Michigan correctional facility thus precluding any basis for a parity-based offering at any women’s facility.
When classes leading to a baccalaureate degree did not begin at the Crane Facility on October 21, 1986, the day after the court’s preliminary injunction mandating such a program, the plaintiffs filed a second motion to hold the defendants in contempt. A hearing was held on October 31, 1986, and was adjourned to November 6, 1986. Testimony was taken on that date and the district court once again took under advisement the motion for contempt. Apparently at that hearing — the record is unclear on the matter — the district court indicated an intention to appoint an “administrator of education” to ensure compliance with its 1979 and 1981 orders. At the hearing, the district court “appointed” a search committee comprised of administrative and academic officials of the University of Michigan to recommend a candidate for the administrator position, although no order was entered appointing the committee or defining its charge. Apparently both appellants and appellees recommended nominees for the administrator’s position.
Hearings were held on April 13 and April 17, 1987, after which the district court entered a Memorandum Opinion and Order which defendants claim had been prepared by the district court many months earlier and, in fact, had been submitted to the parties for their consideration, which appointed Dr. Richard Meisler “administrator to design and implement educational programs for female inmates on a parity with male inmates.” It is that order and the appointment of Dr. Meisler which is appealed in case number 87-1466.
II.
Initially, we note that plaintiffs’ claims that they have been denied equal protection of the law under the fourteenth amendment by the defendants’ failure to provide educational opportunities to women inmates in parity with those offered to male inmates is not at issue in this case. The plaintiffs have prevailed on that claim and the district court’s 1979 judgment and 1981 judgment and final order so provide. The single issue that is presented in these consolidated appeals is whether the district court abused its discretion in granting the preliminary injunction in No. 86-2125, and the order appointing administrator in No. 87-1466.
Before discussing that issue, we note preliminarily that defendants’ claim that women inmates at the Crane Correctional Facility are not within the class designated by the 1981 order is without merit. The 1979 judgment entered by the district court defined the class as “all female felons who are now or may be in the future, incarcerated at Huron Valley Women’s Facility. A sub-class is certified composed of all state women inmates incarcerated at the Kalamazoo County Jail.” At that time, the Huron Valley and Kalamazoo Facilities were the only institutions housing women inmates in Michigan. In granting class certification, the court stated, “The action is brought as a class action on behalf of all female inmates in Michigan.” Given the facts at the time of the class certification and the court’s very explicit statement of its purpose in certifying the class, it is clear that the class consists of all women inmates, including inmates at the Florence Crane Facility, which was opened some five years after the certification of the class.
III.
We address first the propriety of the district court’s October 20,1986, temporary injunction as amended on October 31, 1986. A preliminary injunction is an equitable remedy within the district court’s discretion and the applicable standard of review on appeal is abuse of discretion. Christian Schmidt Brewing Co. v. Heilman Brewing Co., 753 F.2d 1354 (6th Cir.1985). As this court stated:
There are four factors to be considered in determining whether the grant or denial of a preliminary injunction was an abuse of discretion: (a) the likelihood of the success on the merits of the action, (b) the irreparable harm which could result without the relief requested, (c) the impact on the public interest, and (d) the possibility of substantial harm to others... Although these four factors must be considered in assessing a request for a preliminary injunction, the four factors do not establish a rigid and comprehensive test for determining the appropriateness of preliminary and injunctive relief. Instead, the district court must engage in a realistic appraisal of all the traditional factors weighed by a court of equity.
Christian Schmidt Brewing Co., 753 F.2d at 1356 (citations omitted). It is settled that the district court must make specific findings of fact “concerning each of these four factors, unless fewer are dispositive.” In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). The requirement that specific findings of fact be made in support of the trial court’s grant or denial of a request for a temporary injunction is derived from Fed.R.Civ.P. 52(a) which, in relevant part, provides:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review_ (Emphasis added.)
The parties vigorously contest whether, in issuing its injunction, the district court has complied with three of the four criteria laid down in Christian Schmidt Brewing Co., supra. Defendants claim, at length, that the facts of this case show that no irreparable harm will result to the four inmates at Crane if a four-year baccalaureate degree program is not offered at that institution because such a program is offered at Huron Valley to which defendants are willing to transfer the four; that it is impossible for it to comply with the injunc-tive order to provide a baccalaureate program at Crane because no educational institution has been found that is willing to offer that program at Crane, and that the facts show that the district court has ordered defendants to provide educational programming at Crane which is not comparable in any way to educational programming offered to male prisoners at Jackson since, at Jackson, the defendants and the state of Michigan do not provide any educational programming. Such programs as exist are said to be provided by private and public colleges and universities and the defendant merely provides classroom space and, in other small ways, accommodates the inmates’ schooling schedules. Defendants claim, in sum, that the facts of this controversy show that what the court has ordered to be done at Crane to achieve compliance with its 1981 order is beyond the scope of the 1981 order, will generate new equal protection claims by male inmates for education programs at Michigan’s many other correctional facilities for men, is not warranted by any evidence of noncompliance with the order, and is, in all events, entirely beyond the defendants’ ability to comply.
Plaintiffs, on the other hand, insist that there are no facts in dispute in this case and thus no fact finding by the district court was required in support of the issuance of its injunction, and that the injunction was properly issued as a matter of law. Plaintiffs also insist that defendants “contort the facts in their brief in what appears to be an attempt to make something what it is not”; that the “factual arguments” defendants now raise were not raised at the October 20 “evidentiary hearing”; that the defendants “twist the statements of the court... in such a manner as to make the court sound foolish”; and, somewhat in contradiction to their first claim, argue that “[t]he district court did make findings of fact. They may not be set forth in the textbook manner appellant would like, but they are findings nevertheless.”
It is incontestably plain to us that there are a host of highly controverted factual claims, sharply disputed by the parties, from which the district court was necessarily required to pick and choose in order to arrive at the factual conclusions necessary to justify the issuance of its October 20 injunctive order. It is equally clear that the district court necessarily rejected a number of defendants’ factual assertions and embraced the plaintiffs’ version of the facts on a number of contested matters. Unfortunately, the district court made no record of any factual findings whatever in support of its injunctive order but merely recited in the order the requisite conclu-sionary “findings,” in the familiar formulae language necessary for the issuance of a preliminary injunction. Its order reads:
This matter having come before the Court on Plaintiffs’ Motion for Temporary Restraining Order; the Court having reviewed the matter, and heard oral argument, the Court finds that:
1. Those Plaintiff class members incarcerated at the Florence Crane Correctional Facility are covered by the Orders previously entered in Glover v. Johnson, 478 F.Supp. 1075 (1979); 510 F.Supp. 1019 (1981) and pursuant to the Order of Intervention, Severance and Transfer entered by Judge Gibson in the matter of Fair, et al. v. Brown, et al., Case No. K 85-535 CA9.
2. Plaintiffs will suffer irreparable harm if four-year degree educational programs are not offered to women incarcerated at the Florence Crane Facility either at the Facility or at a nearby educational facility, beginning October 21, 1986. The Court finds the irreparable harm here to be the denial of Plaintiffs’ constitutional rights to parity in educated programming pursuant to Glover v. Johnson, 478 F.Supp. 1085 [1975] (1979); 510 F.Supp. 1019 (1981).
3. Any harm to Defendants in providing such programming at the Crane Facility does not outweigh the irreparable harm to Plaintiffs.
' 4. There is a high likelihood that Plaintiffs will succeed on the merits of this order.
IT IS HEREBY ORDERED that a Preliminary Injunction be issued enjoining Defendants from requiring Plaintiffs to transfer to Huron Valley Women’s Facility to receive four-year degree programs; and Orders Defendants as follows:
IT IS HEREBY ORDERED that Defendants, ROBERT BROWN, Director, Michigan Department of Corrections, JAMES LINCOLN, THOMAS K. EARD-LEY, JR., GWEN ANDREW, BRUNET-TA BRANDY, DUANE L. WATERS, M.D., the MICHIGAN CORRECTIONS COMMISSION provide four-year degree programming for Joyce Dixon, Victoria Hollis, Mildred Perry and Gladys Wilson who are presently incarcerated at the Florence Crane Facility in addition to the programming provided for women prisoners at the Huron Valley Women’s Facility.
IT IS FURTHER ORDERED that Defendants continue in the efforts to offer four-year degree programs to all other interested prisoners incarcerated at the Florence Crane Facility.
Tim injunctive order is unsupported by a memorandum opinion or even a transcript of a bench opinion. As is plain from the order, no facts are recited describing how the women incarcerated at the Florence Crane Facility “will suffer irreparable harm” if a four-year degree program is not' presented at Crane, or why absence of such a program will generate irreparable harm, save the court’s legal conclusion that the harm is “the denial of plaintiffs’ constitutional rights.” Similarly, the court concludes that harm to the plaintiff outweighs harm to the defendants and that the plaintiffs are likely to succeed in the litigation, without reference to any specifics in an evidentiary record and particularly without reconciling the sharp disagreement between the parties about the capacity of the defendant to provide such programs, and the defendants claim that to do so would generate new constitutional deprivations to male prisoners and negatively “impact the public interest.”
Without sufficiently specific findings of fact, this court is unable to meet its obligation to properly review the district court’s compliance with the criteria mandated by the rule for the issuance of preliminary injunctions.
While specific findings of fact for the issuance of a preliminary injunctive order need not be made as to all four factors listed in Christian Schmidt Brewing Co. if fewer are dispositive, In re DeLorean Motor Co., 755 F.2d at 1228, in this instance there are no factual findings by the district court whatever, merely legal conclusions. We are unable therefore to carry out our responsibility to determine the rationale for the court’s sweeping order, to determine whether it rests upon facts that have a basis in the record, and thus to know whether, as the defendants charge, the court has abused its very substantial discretion. Supporting findings of fact are especially critical in a case such as this in which the court’s order intrudes significantly into the prerogatives of state correctional officials and must therefore be narrowly tailored to remedy the constitutional violation found. See Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir.1984).
We must therefore vacate the district court’s amended injunctive order and remand the matter to that court for specific findings of fact as required under Fed.R. Civ.P. 52(a) and the cases we have cited.
IV.
On April 17, 1987, the district court signed and entered a Memorandum Opinion and Order appointing Dr. Richard Meisler to serve as a court supervised administrator with authority, inter alia,
[T]o design and implement educational programs for female inmates on a parity with male inmates. The administrator shall have full power, subject to the supervision of the Court, to contract for educational services with educational institutions necessary to achieve parity.
IT IS FURTHER ORDERED that defendants shall not circumvent this order by reducing educational programs presently provided male inmates.
IT IS FURTHER ORDERED that defendant bear the cost of the plans designed and implemented by the Administrator.
IT IS FURTHER ORDERED that any State Officers necessary to provide complete relief pursuant to this order be joined as party defendants. (Footnote omitted.)
It is obvious not only from the text of the order but from the events surrounding its preparation and entry that the October 1986 injunctive order and the appointment of the administrator are very closely related. As we have indicated, apparently the memorandum and order appointing the administrator was actually prepared in November of 1986, very shortly after the in-junctive order was issued, but was not signed and entered. It appears to have been distributed to counsel for the parties, unsigned, for information purposes. The order recites in considerable detail the history of this litigation, observes that the defendants have “through bureaucratic inertia, intransigence, and resistance [denied] female inmates equal educational opportunities,” and finds that the “defendants flouted” the court’s 1986 preliminary injunction. The order states that the court “[provided] this detailed chronology to explain [its] conclusion that ordering contempt penalties will not bring compliance.” Although the record is unclear, it appears that no evidentiary hearings were ever held primarily for the purpose of making factual findings on the necessity or desirability of appointing an administrator. Hearings were held in the district court on October 31, November 6, November 13, and November 20, but those hearings appear to have been related to the plaintiffs’ motion that the defendants be held in contempt for violation of the October 20 injunctive order. But it is evident from the text of the order appointing the administrator that the order was substantially related to the in-junctive order in the sense that it is really the district court’s response to its perceived inability to enforce the injunctive order through ordinary contempt proceedings. The court declared as much in the memorandum portion of the order:
jjt * * # sfc *
After a hearing on October 20, 1986, I granted preliminary relief ordering defendants to provide the courses both at Huron Valley and at Crane beginning October 21, 1986. Defendants flouted this direct order and did not begin courses at Crane.
Defendants’ counsel appeared on October 31, 1986 in response to my order to explain why courses had not begun. Characteristically, defendants attempted to obfuscate the issue by substituting counsel who had not previously handled the case. I did not receive an adequate explanation and ordered an evidentiary hearing for November 6, 1986. There are still no baccalaureate courses at Crane.
I provide this detailed chronology to explain my conclusion that ordinary contempt penalties will not bring compliance. Only an Administrator, appointed and supervised by me, can design and implement the educational programs required by my orders.
* * * * * *
Thus, it is plain that the appointment of the administrator is, in essence, an effort, in lieu of contempt proceedings, to enforce the injunctive order. However, as we have indicated, the injunctive order must be set aside because it is not supported by sufficiently specific findings of fact on the essential criteria for the issuance of injunc-tive relief required in Christian Schmidt Brewing Co., supra, and mandated by Rule 52(a). The order appointing administrator, to the extent that it is an enforcement extension of the injunctive order, suffers, therefore, from the same absence of factual findings to justify it that vitiates the injunctive order. It would be most anomalous to invalidate the court’s injunc-tive order but approve a subsequent enforcement measure carrying its terms into effect.
But that is not the only reason we must set aside the order appointing the administrator. Even if it were not so directly related to, indeed generated by, the injunctive order we are dissolving, and could be said to have an independent basis, we think it is an excessively intrusive interference in the prerogatives of a state agency that is not supported by evidence of the quality and quantity required for the exercise of such extraordinary federal judicial power.
We recognize that in appropriate circumstances the district court may, in the exercise of its equitable powers, take such means as are necessary to enforce its judgment finding a violation by a state agency and its officials of the constitutional rights of inmates of a state correctional institution. Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). And while considerations of federalism and comity caution restraint in the intrusion of federal judicial authority into the administration of state correctional institutions, exercise of that authority may include appointment of a court supervised administrator to oversee such aspects of prison policy as have, in the past, resulted in unconstitutional practices. Kendrick, 740 F.2d at 438.
However, before a district court undertakes to override the prerogatives of state correctional authorities in the administration of any aspect of prison administration, it must assure itself that no less intrusive means of bringing about compliance with constitutional requisites is available. As this court stated in Kendrick:
It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct_ This broad, equitable authority, however, is tempered by precepts of comity and federalism.... The restraints of federalism must be applied not only when an injunction is sought against the judicial branch of state government, but also when an injunction is urged “against those in charge of an executive branch of any agency of state or local government.”_ Thus the federal equity court in fashioning a remedy must afford relief which is “no broader than necessary to remedy the constitutional violation.”...
These underlying and restricted principles of comity and federalism are perhaps nowhere more compelling than in actions seeking relief against unconstiti-tional practices, policies and conduct manifest in state penal institutions.
740 F.2d at 437 (citations omitted).
The court’s order appointing the administrator eloquently expresses the court’s frustration with the lack of progress in bringing regular two-year educational programs and four-year baccalaureate programs to the female inmates of Michigan’s correctional institutions. Although the court’s order fully details the procedural and some of the factual history of the litigation, it does not contain any specific factual findings detailing the acts or omission of the defendants that led the court to conclude that the “defendants flouted” the district court’s orders. While it is very clear that the education program for women the district court ordered in 1979 and 1981 has not come to fruition, and that at the time of the appointment of the administrator educational opportunities for. men and women in the Michigan prison system were not in parity, neither the court’s order nor any record made in support of it contains evidence of the quality and weight necessary to justify the conclusion that the defendants willfully disobeyed the court’s order, violated the plaintiffs’ constitutional rights, and forfeited to the federal judiciary the defendants’ constitutional authority to continue to administer all aspects of the Michigan correctional system. The district court has undertaken the extraordinary measure of placing an element of Michigan correctional prison administration in virtual receivership without the requisite showing or findings of “exceptional circumstances” which the Supreme Court and this court have often pointed out are necessary for the imposition of such an intrusive remedy. See, e.g., In re U.S., 816 F.2d 1083 (6th Cir.1987), and the authorities discussed therein.
In Kendrick, this court stated:
These underlying and restrictive principles of comity and federalism are perhaps nowhere more compelling than in actions seeking relief against unconstitutional practices, policies and conduct manifest in state penal institutions. The rationale was articulated by the Supreme Court more than a decade ago:
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations and procedures, than the administration of its prisons- The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons. Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1[8]37-38, 36 L.Ed.2d 439 (1973)....
Federal restraint into intrusion of a state penal institution is counseled for at least two reasons:
[JJudicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the providence of the Legislative and Executive Branches of our Government, not the Judicial. (Citations omitted.)
Accordingly, it was incumbent upon the district court in the action
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONTINENTAL INSURANCE COMPANIES, Appellee, v. NORTHEASTERN PHARMACEUTICAL AND CHEMICAL COMPANY, INC., Milton Turkel, Edwin B. Michaels and John W. Lee, Appellees, State of Missouri, Intervenor-Appellant.
No. 85-1940.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 15, 1986.
Decided Jan. 22, 1987.
Rehearing En Banc Granted March 30,1987.
Shelley A. Woods, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Karen Florini, Washington, D.C. for amicus — U.S.
Gary R. Long, Kansas City, Mo., for Continental Ins. Co.
Thomas W. Brunner, Washington, D.C., for amicus American Ins. Association.
William D. Iverson, Washington, D.C., for amicus IBM.
Jerome T. Wolf, Carl H. Helmstetter, James T. Price, Spencer, Fane, Britt & Browne, Kansas City, Mo., for amicus AT&T Technologies, Inc.
Before HEANEY and McMILLIAN, Circuit Judges, and MURPHY, District Judge.
Order published at 815 F.2d 51.
The Honorable DIANA E. MURPHY, United States District Judge for the District of Minnesota, sitting by designation.
HEANEY, Circuit Judge.
This appeal raises the question of whether hazardous waste cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-9657 (1982) (CERCLA) are recoverable under a liability policy that covers “property damage” that “occurs” during the life of the policy, where disposal and environmental contamination took place during the policy period but cleanup costs were incurred later. We reverse the district court’s order on Count I of Continental’s complaint, affirm its dismissal of the State of Missouri’s counterclaim, and hold that state and federal governments suffer “property damage” at the time hazardous wastes are improperly “released” into their environment and that cleanup costs are a recoverable measure of damages for this environmental property damage. We also affirm the district court’s dismissal without prejudice of Count II of Continental Insurance Company’s complaint relating to coverage for private individuals’ personal and property damage due to improper hazardous waste disposal.
I. FACTS.
From 1970 to 1972, the Northeastern Pharmaceutical and Chemical Company (NEPACCO) produced hexachlorophene at a chemical plant in Verona, Missouri. The process produced a variety of wastes, among which was dioxin, a highly toxic chemical. In July, 1971, NEPACCO made arrangements to dispose of at least eighty-five fifty-five-gallon drums of these wastes in a trench on a farm near Verona, Missouri (the “Denny farm” site). When the deteriorated drums were dumped in the trench in July, 1971, a “strong odor” shortly emerged, persisting for several months. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823, 828-30 (W.D. Mo.1984). Later in 1971 or 1972, NEPACCO hired Independent Petrochemical Corporation (IPC) which, in turn, hired Russell Bliss to dispose of more dioxin-contaminated wastes. In 1971, 1972, and 1973, Bliss allegedly spread thousands of gallons of these wastes on the premises of the Bubbling Springs Stables in Fenton, Missouri, and on the roads of Times Beach, Missouri. Later, in 1974, a Mr. Minker purchased twenty truckloads of contaminated dirt from the Bubbling Springs Ranch and used it as landfill on his property at West Rock Creek Road, Missouri (the “Minker/Stout/Romaine Creek” site).
During the two-year period from 1970 to 1972 that NEPACCO was in business, it was insured under a Comprehensive General Liability Policy (CGL), issued by Continental. Three somewhat different policies were in effect from August 5, 1970, to August 5, 1971; August 5, 1971, to August 5, 1972; and August 5, 1972, to November 5, 1972. Each policy requires Continental to:
pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies caused by an occurrence,[] and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.
All three provide that: “[tjhis insurance applies only to bodily injury or property damage which occurs during the policy period.”
In 1980, the EPA investigated the Denny farm site and found that the NEPACCO wastes in the trench and underlying soil contained “alarming[ly] high concentrations of dioxin.” Id. at 831. It cleaned up the site, and then sought to recover its costs through a lawsuit against NEPACCO and others. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823 (the “EPA ” suit). The district court found NEPACCO and the other defendants jointly and severally liable under CERCLA for the cost of the cleanup. A separate appeal in that action is now pending before another panel of this Court.
On March 7, 1983, a number of former residents of Times Beach and Imperial, Missouri, filed an action against NEPACCO and others which seeks recovery for personal injuries and property damage allegedly caused by the dumping of NEPACCO’s wastes at the Minker/Stout/Romaine Creek site and on the streets of Times Beach. Capstick v. Independent Petrochemical Corp., No. 832-0453 (Cir.Ct., City of St. Louis, Mo. filed Mar. 7, 1983) (the “Capstick ” suit).
To protect against potential liability arising out of its status as insurance carrier for NEPACCO during the time NEPACCO’s hazardous wastes were improperly disposed of, Continental filed this action against NEPACCO and its former officers and directors. Count I seeks a declaration that Continental is under no duty to defend or indemnify NEPACCO for liability arising out of the EPA suit. Count II seeks the same declaration with respect to the Capstick suit. On November 14, 1984, Continental moved for summary judgment. NEPACCO and the other defendants failed to enter an appearance or file an answer.
The State of Missouri was then granted leave to intervene to protect its interests arising out of claims that it had made against NEPACCO and the other defendants in a third hazardous-waste lawsuit filed in the United States District Court for the Eastern District of Missouri. Missouri v. Independent Petrochemical Corp., No. 83-3670 (E.D.Mo. filed Nov. 23, 1983) (the “IPC ” suit). The complaint in IPC alleges that NEPACCO, its officers, and others are liable under CERCLA for costs incurred by the state in excavating and removing dioxin-contaminated soil from the Mink-er/Stout/Romaine Creek site. The state filed an answer to Continental’s complaint and a counterclaim alleging that Continental is obligated to indemnify the state for the amount of any judgment imposed on NEPACCO in the underlying IPC lawsuit.
On June 25, 1985, the district court granted summary judgment to Continental on Count I of its complaint (no insurance coverage for the EPA claims), and against the state on its counterclaim (no coverage for the IPC claims). The court reasoned that the cleanup costs sought by the United States and the state in the EPA and IPC suits are not “property damage” as that term is defined in the CGL policies and that “no * * * damages were incurred by the government entities during the policies’ effective dates” because the policies were only in effect from 1970 to 1972, and the cleanup costs were incurred later. The court also granted Continental’s motion to dismiss without prejudice Count II of its complaint (the Capstick claims), stating that “more specific findings of bodily injury and property damage” were needed first. The State of Missouri appeals.
II. DISCUSSION.
A. EPA and IPC Claims.
The first issue is whether the district court erred in holding that cleanup costs under CERCLA are not “property damage” as defined in the CGL policies. Although the district court cited no case and gave no explanation for its holding, Continental and amicus AIA advance two arguments in support.
Continental argues that only the actual owners of the land on which hazardous wastes are improperly disposed of sustain “property damage,” and that any injury suffered by governmental entities from the improper disposal is merely an economic injury. We disagree.
The Supreme Court of the United States has held that state and federal governments suffer injury to their “quasi-sovereign” interests when pollutants are released into the soil, water, and air within their jurisdiction. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed.2d 1038, 1044 (1907) (state); cf. Illinois v. City of Milwaukee, 406 U.S. 91, 101-07, 92 S.Ct. 1385, 1391-94, 31 L.Ed.2d 712, 722-26 (1972) (federal). The question here is whether this injury to governmental “quasi-sovereign” interests constitutes “property damage” within the meaning of an insurance policy. Although the Supreme Court has not squarely confronted the issue, two thoughts expressed in cases decided by the Court lead us to reject Continental’s argument. First, it has implied that an injury to a government’s quasi-sovereign interest in natural resources is a form of property damage. Second, it has held that the government has power, in its quasi-sovereign capacity, to seek redress for the environmental property damage suffered by the actual owners of the land affected by pollution.
In Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, for example, the State of Georgia brought suit against certain Tennessee copper companies to enjoin the discharge of noxious gases over its territory. In holding that it had jurisdiction and that Georgia was entitled to an injunction, the Court stated:
The state owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the state as a private owner is merely a make-weight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.
206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed. at 1044.
The Court’s discussion of a governmental interest in “title” to all the soil, water, and air within its jurisdiction suggests that the government has a property interest in natural resources. A similar implication arises from Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), where the Court held that Missouri was permitted to sue as parens patriae to enjoin the discharge of sewage from Chicago, Illinois, into the Illinois and Mississippi rivers: “impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river * * * would injuriously affect the entire state.” 180 U.S. at 241, 21 S.Ct. at 844, 45 L.Ed. at 512. The Court suggested that although a dispute between states over interstate waters may not involve “direct property rights” of a state, the injury to the state’s “quasi-sovereign” rights is akin to an injury to state property rights. Id. Furthermore, the Court stressed that in environmental damage suits, a state has the power to seek redress in court for the property damage caused to the general public. Id.; see also Maryland v. Louisiana, 451 U.S. 725, 766, 101 S.Ct. 2114, 2139, 68 L.Ed.2d 576, 608 (1981) (Rehnquist, J., dissenting on other grounds) (pointing out that when a state sues to advance its quasi-sovereign interests, it is not suing simply to protect the economic interests of its citizens). Similarly, in Toomer v. Witsell, 334 U.S. 385, 408, 68 S.Ct. 1156, 1168, 92 L.Ed. 1460 (1948), Mr. Justice Frankfurter, joined by Mr. Justice Jackson, concurring, stated:
A state may care for its own in utilizing the bounties of nature within her borders because it has technical ownership of such bounties or, when ownership is in no one, because the state may for the common good exercise all the authority that technical ownership ordinarily confers.
This conclusion is supported by statements in a wide array of cases and statutes that state and federal governments have property interests in wildlife, inter- and intrastate waters, and natural resources in general. Moreover, state and federal governments have “direct property interests” in public land holdings which may be damaged by environmental contamination.
In light of these extensive statements of governmental property interests in environmental resources, it does not seem unreasonable to assume that an insurance company, providing liability coverage for a chemical producer, would contemplate environmental damage as a form of covered “property damage for which governments may seek recovery.” See Lansco, Inc. v. Department of Envtl. Protection, 138 N.J. Super. 275, 350 A.2d 520, 524-25 (1975), aff'd, 145 N.J.Super. 433, 368 A.2d 363 (1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977). The policies’ definition of “property damage” as damage to “tangible property” or “physical injury” seems to contemplate damage to tangible property such as land, trees, air, and water. Supportive of this is the inclusion in the latter two of the three policies at issue of clauses generally excluding environmental damage from coverage for property damage. See Port of Portland v. Water Quality Ins. Syndicate, 549 F.Supp. 233, 235 (D.Ore.1982) (The pollution exclusion clause “itself states that ‘property damage’ may result from the discharge of pollutants.”).
Finally, all of the cases which have squarely considered Continental’s argument have rejected it. In Mraz v. American Universal Ins. Co., 616 F.Supp. 1173 (D.Md.1985), for example, the court rejected as “untenable” the insuror’s claim that state and federal governments do not sustain “property damage” for insurance policy purposes when hazardous wastes are improperly disposed of and ultimately cleaned up by the government. A similar conclusion was reached in Lansco, 350 A.2d at 524-25, and Kutsher’s Country Club Corp. v. Lincoln Ins. Co., 119 Misc.2d 889, 465 N.Y.S.2d 136, 139 (N.Y.Sup.Ct.1983).
In sum, we agree with the position taken in Mraz, Lansco, and Kutsher’s that the improper release of toxic wastes may cause “property damage” not only to the actual owner of the land, water, or air, but also to state and federal governments because of their “interest independent of and behind the titles of its citizens in all the earth and air within [their] domain.” Tennessee Copper Co., 206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed.2d at 1044.
Amicus AIA assumes, at least for purposes of argument, that environmental contamination may cause “property damage” for which state and federal governments may seek relief. However, it argues that while the governments might be able to recover for the diminution in value of environmental resources, cleanup costs themselves are not recoverable. It bases this argument on the language of section 107 of CERCLA which provides:
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or site selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.
42 U.S.C. § 9607(a)(4).
A close reading of this section fails to support AIA’s argument that only an action under the last subsection, section 9607(a)(4)(C), is an action for “property-damage.” It seems clear to us that, although subsection (C) directly provides for recovery for damage to natural resources, subsections (A) and (B) are also measures of the damages which governmental entities may recoup for hazardous waste damage to natural resources. This conclusion is supported by all of the on-point cases cited by the parties or revealed by our independent research. See, e.g., Askew v. American Waterways Operators, 411 U.S. 325, 331, 93 S.Ct. 1590, 1595, 36 L.Ed.2d 280, 286 (1973) (In discussing the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U.S.C. §§ 1161 et seq. (1972), and a similar Florida Act, the Court stated, “While the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage.”); Riehl v. Travelers Ins. Co., 22 Env’t Rep.Cas. (BNA) 1544, 1546 (W.D.Pa. Aug. 7, 1984), rev’d on other grounds, 772 F.2d 19 (3d Cir.1985) (Measure of damages to ground water and streams caused by seepage of wastes from insured’s landfill “is not precisely calculable but includes abatement costs relative to preventing further pollution.”); Port of Portland, 549 F.Supp. at 235 (Cost of cleaning up oil spill is recoverable “property damage” under CGL policy.); Chem. Application Co. v. Home Indem. Co., 425 F.Supp. 777, 778 (D.Mass.1977) (Cleanup and removal expenses incurred by insured measure the “damages” for which indemnification is available.); Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 72 N.C.App. 80, 323 S.E.2d 726, 735 (N.C.App.1984), rev’d on other grounds, 315 N.C. 688, 340 S.E.2d 374 (1986) (Cleanup costs are “essentially compensatory damages for injury to common property,” the ground water of the State of North Carolina.); Kutsher’s Country Club Corp., 465 N.Y.S.2d at 139 (“The cost of cleanup * * * is clearly reflective of the state’s power to establish damages with respect to legislation designed to preserve the sovereign state’s interest in the preservation of natural resources.”); Lansco, Inc. v. Department of Envtl. Protection, 350 A.2d at 525 (Measure of damages for pollution discharge in river is “the cost of eliminating the harmful substance from the waters of the state.”). But cf. Atlantic City Mun. Util. Auth., No. A-1320-94TF (N.J.Super.Ct.App.Div.1985); Linda Walls, No. 2-83-418 (E.D.Tenn. Oct. 11, 1983).
Finally, the language of the CGL policies at issue supports the view that cleanup costs are a measure of recoverable damages for injury to environmental resources. The language of the policies specifically require Continental to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of property damage.” This language suggests that once there is property damage — here, environmental contamination — then the damages that flow from that property damage— here, cleanup costs — are recoverable.
In sum, the cases, the CGL policy language, the common meaning of “property damage,” and section 107 of CERCLA.all support the governments’ argument that cleanup costs under CERCLA are compensatory damages for “property damage” within the meaning of the CGL policies. Accordingly, we adopt this view.
The remaining issue is whether the district court erred in holding that the governments did not suffer an “occurrence” of property damage during the policy period because, although the improper waste disposal occurred during the policy period, the cleanup costs were not incurred until long after the policies expired. We hold that it did and adopt the majority view that environmental damage occurs at the moment that hazardous wastes are improperly released into the environment and that a liability policy in effect at the time this damage is caused provides coverage for the subsequently incurred costs of cleaning up the wastes. In Mraz, 616 F.Supp. at 1179, for example, the court rejected the same argument made by the insurer here and held that further fact findings were called for on an allegation that “environmental damage began to take place immediately in 1969 upon dumping at the Leslie site creating the potential for liability within the scope of the 1969 policy.” A similar conclusion has been reached in numerous other cases. See, e.g. Payne, 625 F.Supp. at 1103 (Implicitly finding that improper disposal of hazardous wastes during policy period is an “occurrence” of “property damage” at the time of release into the environment.); Mercury Refining Co. v. Hartford Fire Ins. Co., No. 84-CU-495, (N.D.N.Y. July 19, 1985) (same); Riehl, 22 Envtl.Rep.Cas. (BNA) at 1546, rev’d and remanded on other grounds for further findings, 772 F.2d 19 (3d Cir.1985) (same); Buckeye Union Ins. Co., 477 N.E.2d at 1233 (Insurer during the time period when hazardous wastes were “released” into surrounding soil and groundwater has duty to defend CERCLA cleanup suit under CGL policy.); CPS Chem. Co., 489 A.2d at 1269 (“Time of discovery of the accident does not determine when [damage] took place. The complaint alleges damages commencing with the date of dumpings.”).
Quite similar to this line of decisions are cases involving insurance coverage for “progressive diseases” where exposure to a harmful substance occurred during the policy period but the disease or illness developed later after the policy expired. The majority of federal cases on this issue have found coverage by adopting the “exposure,” or the “continuous exposure,” theory of when injury occurs. These decisions rest on the view that exposure to the dangerous substance at issue during the policy period caused immediate, albeit undetectable, physical harm which ultimately led to disease or physical impairment after the expiration of the policy period. For example, in Forty-Eight Insulations, 633 F.2d at 1223, the Court, in finding coverage for a progressive disease which manifested itself after the policy period, stated, “We see nothing in the policy which requires that the underlying cause of action accrue within the policy period. There exists a clear distinction between when bodily injury occurs and when the bodily injury that has occurred becomes compensable.” Accord Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 878 (1981).
These cases are distinguishable from cases where a negligent act was committed during the policy period but an accident or injury did not occur until after the policy expired. For example, if one negligently fails to shovel snow off his sidewalk during the policy period, there is no compensable accident until and if someone slips and injures himself during the policy period. This distinction was discussed in Mueller Fuel Oil Co. v. Insurance Co. of North America, 95 N.J.Super. 564, 232 A.2d 168, 175 (N.J.Super.Ct.App.Div.1967), a case involving insurance coverage for a claim of malicious prosecution, where the court wrote:
The tort of negligence is not committed unless and until some damage is done. Therefore, the important time factor in determining insurance coverage where the basis of the claim is negligence, is the time when the damage has been suffered. In a claim based on malicious prosecution the damage begins to flow from the very commencement of the tortious conduct — the making of the criminal complaint. The wrong and damage are practically contemporaneous * * *.
It seems to us that in the case of improper hazardous waste disposal, the wrong and the resulting damage may also be practically contemporaneous.
The decision in Kissel v. Aetna Cas. & Sur. Co., 380 S.W.2d 497 (Mo.Ct.App.1964), is particularly relevant on the crucial question of how the Missouri courts would likely rule on the question of when property damage occurs for purposes of insurance coverage. In Kissel, a building contractor hired to build a school employed a subcontractor to dig the foundation and to do landscaping work. During the excavation work in 1952, a series of pressure cracks developed in the ground around the school. The cracks were filled in with dirt and the school construction and landscaping were completed in 1953. The contractor carried a comprehensive general liability policy which covered property damage done by itself and its subcontractors in the course of their construction work. The CGL policy expired in late 1952. In 1957, the cracks reappeared and spread to several pieces of property adjoining the school. Five owners of these pieces of property brought suit, and the construction company instituted suit seeking a declaration that the CGL policy in effect in 1952 covered the damage which occurred in 1957. The insurance carrier argued “that the accident in question occurred in 1957, and not during the policy period, which was November 1951 to November 1952. Under those circumstances, * * * it cannot be held responsible for the damages shown in evidence.” 380 S.W.2d at 507. The court rejected this contention, noting that there was not merely an act of negligent excavation during the policy period, but that this negligence also caused immediate property damage during the policy period which, by 1957, after the policy period, spread to adjoining property. “We agree * * * that the accident mentioned in the policy may be a process and the evidence in the instant case is sufficient to show that the process started during the term of the policy and progressed until the filing of the lawsuits. We rule this point against defendant.” Id. at 509. We find that the Kissel case clearly indicates that Missouri would follow the majority view of the courts which have ruled that “property damage,” within the meaning of a CGL policy, generally occurs at the time hazardous wastes are improperly disposed of and that the insurer at that time may be held liable for cleanup costs incurred after the policy expired.
Applying these principles, it is clear that the “property damage” proved in the EPA case, 579 F.Supp. at 830, first occurred in July, 1971, during the period of time when the first insurance policy issued by Continental to NEPACCO was in effect. EPA, 579 F.Supp. at 830 (noting that NEPACCO’s agents dumped leaking, deteriorated barrels into the trench at the Denny Farm site and that, upon dumping of the wastes, a “strong odor emitted” and “continued for several months, maybe years.”). Under Kissel, it is also clear that Continental may additionally be liable for the continuing spread of the “property damage” at and around the Denny farm site, which first began in July, 1971. Kissel, 380 S.W.2d at 509. Accordingly, we reverse the district court’s order with respect to Count I of Continental’s complaint and remand for resolution of the remaining issues which must be resolved before it can be determined whether Continental must indemnify NEPACCO for the damages awarded in the EPA suit.
It also follows, however, from our holding on the question of the time of the relevant “property damage” “occurrence,” that Continental is not liable to defend or indemnify NEPACCO for liability arising from the IPC suit. The complaint in IPC alleges that in 1971 or 1972, Russell Bliss, pursuant to an agreement with IPC and NEPACCO, transported dioxin-contaminated waste oil from the NEPACCO plant in Verona, Missouri, and spread the contaminated oil on the premises of the Bubbling Springs Stable in Fenton, Missouri. This would be the relevant time of the “property damage” “occurrence” for purposes of cleaning up the Bubbling Springs Stable. However, the IPC complaint does not seek to recover costs for cleaning up the Bubbling Springs Ranch, nor does it seek recovery for the diminution in the value of resources at or around the Bubbling Springs Ranch and its watershed. Instead, the state seeks to recover the costs of cleaning up the Minker/Stout/Romaine Creek site which was contaminated when twenty loads of contaminated fill dirt from the Bubbling Springs Ranch were deposited there in 1974, after the CGL policies had expired. Because the damage at the Minker/Stout/Romaine Creek site first occurred after the last CGL policy’s effective date, we find that it would be beyond the reach of the reasoning in Kissel to hold Continental liable for this damage which began after the policy lapsed. Accordingly, we affirm the district court’s finding on the state’s counterclaim that Continental has no duty to defend or indemnify NEPACCO for potential liability in the pending IPC suit.
B. Capstick Claims.
The State of Missouri contends that the district court erred in dismissing, without prejudice, Count II of Continental’s complaint which seeks a declaration of no duty to defend or indemnify NEPACCO in the Capstick lawsuit. The Capstick suit differs in several respects from the EPA and IPC suits. The latter involve governmental cleanup cost recoveries under CERCLA; the former involves claims by private individuals for personal and property damage arising out of improper disposal of NEPACCO’s hazardous wastes. We agree with the trial court that resolution of the insurance coverage issues in Capstick requires additional fact finding and analysis, see Independent Petrochemical Corp. v. Aetna Cas. and Sur. Co., Civ. No. 83-3347, (D.D.C., filed Feb. 4, 1986), which may be pursued most effectively in a different proceeding. Accordingly, the district court’s decision granting Continental’s motion to voluntarily dismiss Count II without prejudice is affirmed.
. Times Beach was a town of approximately 2,200 people located twenty-five miles southwest of St. Louis. Soil samples taken there by the EPA in the early 1980’s revealed soil dioxin levels in excess of one hundred times the Center for Disease Control’s recommended maximum soil dioxin level for residential areas. In February, 1983, the EPA announced that the government would purchase the entire town of Times Beach using $33.7 million from the federal Superfund. The State of Missouri contributed an additional $3.3 million to the buy-out.
. The drafting history and background of the standard-form CGL policy is discussed in American Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1500-03 (S.D.N.Y.1983), aff'd as modified, 748 F.2d 760 (2d Cir.1984).
. The latter two policies, covering the period August 5, 1971, to November 17, 1972, contain the following "pollution and contamination” exclusion clause:
It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental.
The United States Court of Appeals for the First Circuit has held that coverage for damages caused by hazardous wastes improperly disposed of by the plaintiff in the
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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sc_caseorigin
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100
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
GENESIS HEALTHCARE CORPORATION, et al., Petitioners
v.
Laura SYMCZYK.
No. 11-1059.
Supreme Court of the United States
Argued Dec. 3, 2012.
Decided April 16, 2013.
Ronald J. Mann, New York, NY, for Petitioners.
Neal Kumar Katyal, Washington, DC, for Respondent.
Anthony A. Yang, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.
James N. Boudreau, Greenberg Traurig, LLP, Philadelphia, PA, Michele H. Malloy, Littler Mendelson, P.C., Philadelphia, PA, Stephen A. Miller, Cozen O'Connor, Philadelphia, PA, Ronald J. Mann, Counsel of Record, New York, NY, Christina M. Michael, Mitts Law, LLC, Philadelphia, PA, for Petitioners.
Gary F. Lynch, Counsel of Record, Carlson Lynch LTD, New Castle, PA, Neal Kumar Katyal Washington, DC, Adina H. Rosenbaum, Public Citizen Litigation Group, Washington, DC, Stephen I. Vladeck, Washington, DC, Gerald D. Wells, III, Faruqi & Faruqi, LLP, Jenkintown, PA, for Respondent.
Justice THOMAS delivered the opinion of the Court.
The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., provides that an employee may bring an action to recover damages for specified violations of the Act on behalf of himself and other " similarly situated" employees. We granted certiorari to resolve whether such a case is justiciable when the lone plaintiff's individual claim becomes moot. 567 U.S. ----, 133 S.Ct. 26, 183 L.Ed.2d 674 (2012). We hold that it is not justiciable.
I
The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract. Section 16(b) of the FLSA, 52 Stat. 1060, as amended, 29 U.S.C. § 216(b), gives employees the right to bring a private cause of action on their own behalf and on behalf of "other employees similarly situated" for specified violations of the FLSA. A suit brought on behalf of other employees is known as a "collective action." See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
In 2009, respondent, who was formerly employed by petitioners as a registered nurse at Pennypack Center in Philadelphia, Pennsylvania, filed a complaint on behalf of herself and "all other persons similarly situated." App. 115-116. Respondent alleged that petitioners violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks. Respondent, who remained the sole plaintiff throughout these proceedings, sought statutory damages for the alleged violations.
When petitioners answered the complaint, they simultaneously served upon respondent an offer of judgment under Federal Rule of Civil Procedure 68. The offer included $7,500 for alleged unpaid wages, in addition to "such reasonable attorneys' fees, costs, and expenses... as the Court may determine." Id., at 77. Petitioners stipulated that if respondent did not accept the offer within 10 days after service, the offer would be deemed withdrawn.
After respondent failed to respond in the allotted time period, petitioners filed a motion to dismiss for lack of subject-matter jurisdiction. Petitioners argued that because they offered respondent complete relief on her individual damages claim, she no longer possessed a personal stake in the outcome of the suit, rendering the action moot. Respondent objected, arguing that petitioners were inappropriately attempting to "pick off" the named plaintiff before the collective-action process could unfold. Id., at 91.
The District Court found that it was undisputed that no other individuals had joined respondent's suit and that the Rule 68 offer of judgment fully satisfied her individual claim. It concluded that petitioners' Rule 68 offer of judgment mooted respondent's suit, which it dismissed for lack of subject-matter jurisdiction.
The Court of Appeals reversed. 656 F.3d 189 (C.A.3 2011). The court agreed that no other potential plaintiff had opted into the suit, that petitioners' offer fully satisfied respondent's individual claim, and that, under its precedents, whether or not such an offer is accepted, it generally moots a plaintiff's claim. Id., at 195. But the court nevertheless held that respondent's collective action was not moot. It explained that calculated attempts by some defendants to "pick off" named plaintiffs with strategic Rule 68 offers before certification could short circuit the process, and, thereby, frustrate the goals of collective actions. Id., at 196-198. The court determined that the case must be remanded in order to allow respondent to seek "conditional certification" in the District Court. If respondent were successful, the District Court was to relate the certification motion back to the date on which respondent filed her complaint. Ibid.
II
Article III, § 2, of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies," which restricts the authority of federal courts to resolving " 'the legal rights of litigants in actual controversies,' " Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885) ). In order to invoke federal-court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or " 'personal stake,' " in the outcome of the action. See Camreta v. Greene, 563 U.S. ----, ----, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ). This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.
A corollary to this case-or-controversy requirement is that " 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.' " Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) ). If an intervening circumstance deprives the plaintiff of a "personal stake in the outcome of the lawsuit," at any point during litigation, the action can no longer proceed and must be dismissed as moot. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (internal quotation marks omitted).
In the proceedings below, both courts concluded that petitioners' Rule 68 offer afforded respondent complete relief on-and thus mooted-her FLSA claim. See 656 F.3d, at 201 ; No. 09-5782, 2010 WL 2038676, *4 (E.D.Pa., May 19, 2010). Respondent now contends that these rulings were erroneous, because petitioners' Rule 68 offer lapsed without entry of judgment. Brief for Respondent 12-16. The United States, as amicus curiae, similarly urges the Court to hold that petitioners' unaccepted offer did not moot her FLSA claim and to affirm the Court of Appeals on this basis. Brief for United States 10-15.
While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us. The Third Circuit clearly held in this case that respondent's individual claim was moot. 656 F.3d, at 201. Acceptance of respondent's argument to the contrary now would alter the Court of Appeals' judgment, which is impermissible in the absence of a cross-petition from respondent. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) ; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 119, n. 14, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Moreover, even if the cross-petition rule did not apply, respondent's waiver of the issue would still prevent us from reaching it. In the District Court, respondent conceded that "[a]n offer of complete relief will generally moot the [plaintiff's] claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation." App. 93; 2010 WL 2038676, at *4. Respondent made a similar concession in her brief to the Court of Appeals, see App. 193, and failed to raise the argument in her brief in opposition to the petition for certiorari. We, therefore, assume, without deciding, that petitioners' Rule 68 offer mooted respondent's individual claim. See Baldwin v. Reese, 541 U.S. 27, 34, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004).
III
We turn, then, to the question whether respondent's action remained justiciable based on the collective-action allegations in her complaint. A straightforward application of well-settled mootness principles compels our answer. In the absence of any claimant's opting in, respondent's suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action. While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and "other employees similarly situated," 29 U.S.C. § 216(b), the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied. In order to avoid this outcome, respondent relies almost entirely upon cases that arose in the context of Federal Rule of Civil Procedure 23 class actions, particularly United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ; Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) ; and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). But these cases are inapposite, both because Rule 23 actions are fundamentally different from collective actions under the FLSA, see Hoffmann-La Roche Inc., 493 U.S., at 177-178, 110 S.Ct. 482 (SCALIA, J., dissenting), and because these cases are, by their own terms, inapplicable to these facts. It follows that this action was appropriately dismissed as moot. A
Respondent contends that she has a sufficient personal stake in this case based on a statutorily created collective-action interest in representing other similarly situated employees under § 216(b). Brief for Respondent 47-48. In support of her argument, respondent cites our decision in Geraghty, which in turn has its roots in Sosna. Neither case supports her position.
In Sosna, the Court held that a class action is not rendered moot when the named plaintiff's individual claim becomes moot after the class has been duly certified. 419 U.S., at 399, 95 S.Ct. 553. The Court reasoned that when a district court certifies a class, "the class of unnamed persons described in the certification acquire[s] a legal status separate from the interest asserted by [the named plaintiff]," with the result that a live controversy may continue to exist, even after the claim of the named plaintiff becomes moot. Id., at 399-402, 95 S.Ct. 553.Geraghty narrowly extended this principle to denials of class certification motions. The Court held that where an action would have acquired the independent legal status described in Sosna but for the district court's erroneous denial of class certification, a corrected ruling on appeal "relates back" to the time of the erroneous denial of the certification motion. 445 U.S., at 404, and n. 11, 100 S.Ct. 1202.
Geraghty is inapposite, because the Court explicitly limited its holding to cases in which the named plaintiff's claim remains live at the time the district court denies class certification. See id., at 407, n. 11, 100 S.Ct. 1202. Here, respondent had not yet moved for "conditional certification" when her claim became moot, nor had the District Court anticipatorily ruled on any such request. Her claim instead became moot prior to these events, foreclosing any recourse to Geraghty. There is simply no certification decision to which respondent's claim could have related back.
More fundamentally, essential to our decisions in Sosna and Geraghty was the fact that a putative class acquires an independent legal status once it is certified under Rule 23. Under the FLSA, by contrast, "conditional certification" does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, see Hoffmann-La Roche Inc., supra, at 171-172, 110 S.Ct. 482, who in turn become parties to a collective action only by filing written consent with the court, § 216(b). So even if respondent were to secure a conditional certification ruling on remand, nothing in that ruling would preserve her suit from mootness.
B
Respondent also advances an argument based on a separate, but related, line of cases in which the Court held that an "inherently transitory" class-action claim is not necessarily moot upon the termination of the named plaintiff's claim. Like our decision in Geraghty, this line of cases began with Sosna and is similarly inapplicable here.
After concluding that the expiration of a named plaintiff's claim following certification does not moot the class action, Sosna suggested that, where a named plaintiff's individual claim becomes moot before the district court has an opportunity to rule on the certification motion, and the issue would otherwise evade review, the certification might "relate back" to the filing of the complaint. 419 U.S., at 402, n. 11, 95 S.Ct. 553. The Court has since held that the relation-back doctrine may apply in Rule 23 cases where it is "certain that other persons similarly situated" will continue to be subject to the challenged conduct and the claims raised are "'so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.' " County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (quoting Geraghty,supra, at 399, 100 S.Ct. 1202), in turn citing Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Invoking this doctrine, respondent argues that defendants can strategically use Rule 68 offers to "pick off" named plaintiffs before the collective-action process is complete, rendering collective actions "inherently transitory" in effect. Brief for Respondent 37.
Our cases invoking the "inherently transitory" relation-back rationale do not apply. The "inherently transitory" rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course. A plaintiff might seek, for instance, to bring a class action challenging the constitutionality of temporary pretrial detentions. In doing so, the named plaintiff would face the considerable challenge of preserving his individual claim from mootness, since pretrial custody likely would end prior to the resolution of his claim. See Gerstein, supra. To address this problem, the Court explained that in cases where the transitory nature of the conduct giving rise to the suit would effectively insulate defendants' conduct from review, certification could potentially "relate back" to the filing of the complaint. Id., at 110, n. 11, 95 S.Ct. 854; McLaughlin,supra, at 52, 111 S.Ct. 1661. But this doctrine has invariably focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant's litigation strategy. See, e.g., Swisher v. Brady, 438 U.S. 204, 214, n. 11, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) ; Spencer v. Kemna, 523 U.S. 1, 17-18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
In this case, respondent's complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant's attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff's alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent's suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent's suit than if her suit had never been filed at all.
C
Finally, respondent argues that the purposes served by the FLSA's collective-action provisions-for example, efficient resolution of common claims and lower individual costs associated with litigation-would be frustrated by defendants' use of Rule 68 to "pick off" named plaintiffs before the collective-action process has run its course. Both respondent and the Court of Appeals purported to find support for this position in our decision in Roper, 445 U.S., at 339, 100 S.Ct. 1166.
In Roper, the named plaintiffs' individual claims became moot after the District Court denied their motion for class certification under Rule 23 and subsequently entered judgment in their favor, based on the defendant bank's offer of judgment for the maximum recoverable amount of damages, in addition to interest and court costs. Id., at 329-330, 100 S.Ct. 1166. The Court held that even though the District Court had entered judgment in the named plaintiffs' favor, they could nevertheless appeal the denial of their motion to certify the class. The Court found that, under the particular circumstances of that case, the named plaintiffs possessed an ongoing, personal economic stake in the substantive controversy-namely, to shift a portion of attorney's fees and expenses to successful class litigants. ID., AT 332-334, and n. 6, 100 s.ct. 1166. only then, in dicTa, did the Court underscore the importance of a district court's class certification decision and observe that allowing defendants to " 'pic[k] off' " party plaintiffs before an affirmative ruling was achieved "would frustrate the objectives of class actions." Id., at 339, 100 S.Ct. 1166.
Roper's holding turned on a specific factual finding that the plaintiffs' possessed a continuing personal economic stake in the litigation, even after the defendants' offer of judgment. Id., at 336, 100 S.Ct. 1166. As already explained, here, respondent conceded that petitioners' offer "provided complete relief on her individual claims," Brief in Opposition i, and she failed to assert any continuing economic interest in shifting attorney's fees and costs to others. Moreover, Roper's dictum was tethered to the unique significance of certification decisions in class-action proceedings. 445 U.S., at 339, 100 S.Ct. 1166. Whatever significance "conditional certification" may have in § 216(b) proceedings, it is not tantamount to class certification under Rule 23.
* * *
The Court of Appeals concluded that respondent's individual claim became moot following petitioners' Rule 68 offer of judgment. We have assumed, without deciding, that this is correct.
Reaching the question on which we granted certiorari, we conclude that respondent has no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.
Respondent's suit was, therefore, appropriately dismissed for lack of subject-matter jurisdiction.
The judgment of the Court of Appeals for the Third Circuit is reversed.
It is so ordered.
Justice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join, dissenting.
The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a "'collective action' " brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., "is justiciable when the lone plaintiff's individual claim becomes moot." Ante, at 1526. Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding. But what if that premise is bogus? What if the plaintiff's individual claim here never became moot? And what if, in addition, no similar claim for damages will ever become moot? In that event, the majority's decision -founded as it is on an unfounded assumption-would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I'll describe. Feel free to relegate the majority's decision to the furthest reaches of your mind: The situation it addresses should never again arise.
Consider the facts of this case, keeping an eye out for anything that would render any part of it moot. Respondent Laura Symczyk brought suit under a provision of the FLSA, 29 U.S.C. § 216(b), "on behalf of herself and others similarly situated." App. 21. Her complaint alleged that her former employer, petitioner Genesis Healthcare Corporation (Genesis), violated the FLSA by treating 30 minutes of every shift as an unpaid meal break, even when an employee worked during that time. Genesis answered the complaint and simultaneously made an offer of judgment under Federal Rule of Civil Procedure 68. That settlement proposal covered only Symczyk's individual claim, to the tune of $7,500 in lost wages. The offer, according to its terms, would "be deemed withdrawn" if Symczyk did not accept it within 10 days. App. 79. That deadline came and went without any reply. The case then proceeded in the normal fashion, with the District Court setting a schedule for discovery. Pause here for a moment to ask whether you've seen anything yet that would moot Symczyk's individual claim. No? Neither have I.
Nevertheless, Genesis moved to dismiss Symczyk's suit on the ground that it was moot. The supposed logic went like this: We (i.e., Genesis) offered Symczyk complete relief on her individual damages claim; she "effectively reject[ed] the [o]ffer" by failing to respond; because she did so, she "no longer has a personal stake or legally cognizable interest in the outcome of this action"; accordingly, the court "should dismiss her claims." Id., at 67. Relying on Circuit precedent, the District Court agreed; it dismissed the case for lack of jurisdiction-without awarding Symczyk any damages or other relief-based solely on the unaccepted offer Genesis had made. See App. to Pet. for Cert. 35 (citing Weiss v. Regal Collections, 385 F
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
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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
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)
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
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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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songer_casetyp1_2-3-1
|
F
|
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 - civil rights claims by prisoners and those accused of crimes".
In re James P. STUMP, Petitioner.
Misc. No. 509.
United States Court of Appeals, First Circuit.
Oct. 29, 1971.
James P. Stump, pro se, on motion and brief in support thereof.
Courtland D. Perry, Asst. Atty. Gen., on brief in opposition to motion.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Although the amount of money involved in this case is small, the principle is not, but is of some general importance.
Petitioner appellant, a state prisoner, formerly at large on parole, had his parole revoked under procedures that he alleges were unconstitutional. In the light of present judicial concern over parole practices generally we are not prepared to say that his 42 U.S.C. § 1983 complaint which he sought to file in the district court is frivolous on its face. Nor did the district court. That court denied him leave to proceed in forma pauperis, under 28 U.S.C. § 1915(a), on the ground that he had sufficient means, thereby requiring him to pay the $15 filing fee. Petitioner admits to having a cash credit with the warden of $78.00. He lists no outstanding debts. The warden has certified that his credit is $218. Rather than pay the fee, petitioner brings this petition for mandamus, seeking an order recognizing his right to proceed in forma pauperis.
We have previously, in other connections, held that a plaintiff, even though of small means, could reasonably be asked to some small degree to “put his money where his mouth is,” it being all too easy to file suits, even with sufficient pro forma allegations, if it costs nothing whatever to do so. We are not prepared to say that the district court’s requirement in this case was such an abuse of discretion as would call for mandamus on our part.
Nor would we say that the court may not inquire whether, if a prisoner has no cash credit at the moment of filing, he had disabled himself by a recent drawing on his account, and if so, for what purposes.
The petition is dismissed. This ruling is without prejudice to a renewed request in the district court for leave to proceed in forma pauperis in order to meet some larger described expense subsequently faced. Cf. Green v. Cotton Concentration Co., S.D.Tex., 1968, 294 F.Supp. 34.
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer:
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songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
MORGAN v. PATILLO.
Circuit Court of Appeals, Fifth Circuit.
February 28, 1928.
No. 5141.
Contracts <§=>19 — Acceptance of offer cannot create binding contract, where withdrawn before communicated to accepting party by his agent.
Acceptance of offer cannot create binding contract, where offer was withdrawn before it was communicated to accepting party by his agent.
Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Lake Jones, and William I. Grubb, Judges.
1 Suit in equity by Frank A. Morgan against S. J. Patillo. Decree for defendant, and complainant appeals.
Affirmed.
See, also, 1 F.(2d) 326.
Wm. M. Toomer, W. T. Stockton, Herman Ulmer, and Charles H. Murchison, all of Jacksonville, Fla. (Stockton, Ulmer & Murchison, of Jacksonville, Fla., on the brief), for appellant.
Grover Middlebrooks and Shepard Bryan, both of Atlanta, Ga., and George C. Bedell, of Jacksonville, Fla. (Chester Bedell, of Jacksonville, Fla., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
WALKER, Circuit Judge.
When this ease was here before, a decree sustaining a motion of the appellee to dismiss the bill was reversed. Morgan v. Patillo (C. C. A.) 297 F. 140. After the remandment of the case appellee’s answer to the bill put in issue its allegations as to the making of a contract by the parties.
We are of opinion that the evidence adduced was not such as to require the conclusion that those allegations were sustained. The evidence was consistent with findings that on. May 1, 1922, the appellee for the first time agreed in an interview with George Rentz, .who was acting as appellee’s agent to negotiate a sale of timber on certain lands in Madison county, Florida, to sell that timber at a stated price per 1,000 feet, and then signed a memorandum in the form of a letter addressed to Rentz, setting out the terms of sale of such timber to appellant, that appellee was induced to consent to the contract evidenced by that memorandum by a material false representation made by Rentz, who was a paid employe of parties interested in the purchase of the timber, and that before that memorandum, or the terms of sale embodied therein, were communicated to appellant, or accepted by him, appellee withdrew his consent to carry out the contract to be evidenced by that instrument.
That memorandum could not bind appellee as a contract prior to its terms being communicated to appellant, and there could have been no effectual express or implied acceptance by appellant of the proposal embodied in that memorandum after the appellee’s withdrawal of that proposal before the terms of it were communicated to appellant. Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686; Williston on Contracts, §§ 70, 71. The decree dismissing the bill is sustainable on the ground that the court was justified in concluding from the evidence that the instrument relied on as the basis of the • relief sought did not become a contract enforceable against the appellee.
That decree is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
STATE OF WYOMING and the Richfield Oil Corporation, a corporation, Appellants, v. UNITED STATES of America, Appellee.
No. 6869.
United States Court of Appeals Tenth Circuit.
Oct. 12, 1962.
Rehearing Denied Nov. 14, 1962.
William D. Foote and M. F. Schade, Los Angeles, Cal. (W. M. Haight, Deputy Atty.Gen., State of Wyoming, and Frank M. Gallivan, Cheyenne, Wyo., were on the brief), for appellants.
S. Billingsley Hill, Atty., Dept, of Justice (Ramsey Clark, Asst. Atty. Gen., Dept, of Justice, Robert N. Chaffin, U. S. Atty., Cheyenne, Wyo., Roger P. Marquis and Margaret S. Willick, Attys., Dept, of Justice, were on the brief), for the United States.
Before PHILLIPS, PICKETT and HILL, Circuit Judges.
PHILLIPS, Circuit Judge.
The United States brought this action against the State of Wyoming and Rich-field Oil Corporation, seeking a declaratory judgment, under 28 U.S.C.A. § 2201, establishing its title to certain lands in the State of Wyoming, as’ against the adverse claims of title made by the State of Wyoming, and by Richfield Oil Corporation as the lessee under oil and gas leases on a portion of such lands. From a judgment in favor of the United States, the State of Wyoming and Richfield have appealed.
Section 4 of the Act providing for the admission of the State of Wyoming into the Union, 26 Stat. 222, in part reads:
“Sections numbered sixteen and thirty-six in every township of said proposed State, and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent, thereto, in legal subdivisions of not. less than one quarter section, and. as contiguous as may be to the section in lieu of which the same is. taken, are hereby granted to said. State for the support of common-schools, such indemnity lands to be-selected within said State in such, manner as the legislature may provide, with the approval of the Secretary of the Interior: * * *.” Section 12 of such Act in part reads r “The State of Wyoming shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act;. ”
Section 14 of such Act in part reads :■
“ * * * And there shall be deducted from the number of acres of land donated by this act for specific objects to said State the number of' acres heretofore donated by Congress to said Territory for similar objects.”
Article 18, § 1 of the Wyoming Constitution, Wyoming Statutes, 1957, Vol. 1* p. 165, in part reads:
“The state of Wyoming hereby agrees to accept the grants of lands, heretofore made, or that may hereafter be made by the United States to the state, for educational purposes, * * * with the conditions and limitations that may be imposed by the act or acts of congress, making such grants * * *.”
Article 18, § 4 of the Wyoming Constitution, supra, in part reads:
“The legislature shall * * * provide by law for the location and selection of all lands that have been or may hereafter be granted by congress to the state, * * *.”
Section 2 of the Act of May 18, 1796,. (The Public Lands Survey Act) 1 Stat. 464, 466, as carried forward in 43 U.S. C.A. § 751, establishing the mode of surveying public l^iffis, provides for the division of the public lands by north and-^ south lines, running according to the true" meridian, and by other lines crossing -them at right angles, so as to form townships of six miles square; for the division of each township into thirty-six sections, each containing as nearly as may be, six hundred and forty acres; for the progressive numbering of such sections ■from one through thirty-six; and for the marking of the corners of each section. The public lands of the United :States in the Territory of Wyoming were surveyed under the provisions of the Public Lands Survey Act. Such surveys were approved and accepted in 1883 and 1884. Thereafter, it was discovered that many of the surveys were either inaccurate or erroneous and that many of the monuments were obliterated. Because of -those facts and the effect thereof upon tidies to lands in the State of Wyoming, the State, acting through its officials, ■private claimants, and officials of the United States, requested Congress to provide for resurveys covering large areas in the State, so that the State, private and Federal lands could be accurately located. Congress responded to such requests in 1903, 1905 and 1908 by enacting legislation which directed resurveys •of areas of the State in excess of 12,000,->000 acres. The Resurvey Act of January .10, 1903, 32 Stat. 767, provides:
“That the Secretary of the Interior be, and he is hereby, authorized and directed to cause to be made a resurvey of the following townships in the State of Wyoming: [here follows a description of the townships to be resurveyed]. * * * Provided, That nothing herein contained shall be so construed as to impair the present bona fide rights or claim of any actual occupant of any of said lands so occupied to the amount of land to which, under the law, he is entitled.”
The Resurvey Act of March 3, 1905, 33 Stat. 992, was substantially the same as the 1903 Act, except it described different townships. The Resurvey Act of May 29, 1908, 35 Stat. 465, was substantially the same as the two prior Acts, except it described different townships.
The resurveys under the 1903 Act were commenced shortly after that Act became effective and continued under it and the two latter Acts to and including 1921.
(When hereinafter we use the phrase “original school section (s)” we mean the school section(s) as located by the original survey thereof and when hereinafter we use the phrase “resurveyed school section^)” we mean the school section(s) as located by the resurvey thereof.)
We disagree with the contention of counsel for appellants that we should consider only that part of the evidence which is specifically applicable to the 9 sections remaining in controversy in this action. The resurveys of the townships in which such sections were located were not isolated surveys, separate and apart from the resurveys of the other townships, made under the same or like Congressional authority and for the same reasons and purposes. On the contrary, the resurveys of such townships were a part of an overall plan to correct errors in earlier surveys of many townships. Hence, the conduct of the State and of the United States, with respect to the resurvey of other school sections, was pertinent to show the relative course of action of each in the carrying out of such overall plan and the reliance of the United States on such State conduct.
The officials of the State, throughout the period of the resurveys, actively cooperated and assisted in the making of such resurveys, acting on the premise that Congress intended that either the original school sections or the resurveyed school sections, but not both, should be segregated and designated as school sections granted to the State. On March 17,1904, Mr. Gilcrest, State Land Inspector and member of the State Board of Land Commissioners, advised the United States Surveyor General that in the making of the resurveys, the State was entitled to have Sections 16 and 36 segregated as originally surveyed. Early in 1904, the State authorities were advised by the Surveyor General as to the desirability of having a representative on the ground to point out the original school sections, so that they could be segregated. By the Act of February 15, 1905, § 36-35, Wyoming Statutes, 1957, it was provided that:
“The commissioner of public lands shall select and locate all lands which are now or may be hereafter granted to the State of Wyoming by the United States for any purpose whatever.”
On May 18, 1906, the Governor convened a special meeting of the State Board of School Land Commissioners, of which he was President, and the State Treasurer and Superintendent of Public Instruction were members. The minutes of that meeting recite the following:
“The question of the resurvey of lands in Wyoming being considered it was moved and duly carried that the officers of the Board be authorized to waive the right of the State of Wyoming to sections 16 and 36, or lands selected in lieu thereof, and accept similar numbered tracts, as resurveyed, or lieu land when upon resurvey said tracts are in conflict with private land claims, when such action is not apparently to the serious disadvantage of the State and that the officers of the Board be authorized to execute such papers as may be required by the United States to carry out this plan.”
Five days thereafter, the State Land Board adopted a motion stating that it waived its right to original school sections in 12 townships and “agrees to accept in lieu thereof said numbered sections in said numbered townships * * * as resurveyed” and, thereafter, the successive State Commissioners of Public Lands (when it was in the State’s interest to do so) consistently filed written waivers of the State’s right to have the original school sections segregated and accepted in lieu thereof, as its school land grant, resurveyed school sections.
There were instances where the State officials waived the surveying out by metes and bounds of original school sections and agreed to accept in lieu thereof similarly numbered resurveyed school sections, and in those instances, in accordance with instructions from the Commissioner of the General Land Office, the lines of the original survey in such townships were not rerun.
The record discloses no instance where the State, under the Resolution of May 18, 1906, elected to accept resurveyed school sections in lieu of original school sections, that the State did not execute a waiver of its rights to the latter, and the record discloses many instances where upon such an election by the State it executed such a waiver.
When it was in the State’s interest to retain original school sections, they were segregated and assigned a lot or tract number, but in those instances, except in the case referred to in Note 5, infra, a waiver of the resurveyed school sections was not deemed necessary, because it was presumed that no title thereto had passed, since the State retained its title to the original school sections.
The State Commissioner very carefully weighed whether the State should retain in satisfaction of its grant an original school section, or elect to take a resurveyed school section. At no time did he assert a right to both.
Continuously, from the commencement ■of the resurveys until May 22, 1957, the State, acting through its duly authorized public officials, by the Resolution of May 18, 1906, by the execution of waivers of its claim to original school sections, by the selection of resurveyed school sections in lieu of original school sections, by elections to retain original school sections, and by the official opinion of its Attorney General, dated August 2, 1956, took the position that the State did not have title both to the lands in original school sections and to the additional lands in resurveyed school sections outside of the boundaries of the former.
Thereafter, on May 22,1957, the Attorney General of the State issued an official opinion and held that the State had title to all of the lands in such original school sections and also in the resurveyed school sections. Under such opinion, the State claimed additional school lands, which, according to an estimate made by the Attorney General of the State, May 6, 1957, amounted to between 60,000 and 70,000 acres, and the oil and gas leases referred to above were issued to Richfield. Rich-field agreed to undertake to obtain a final judicial determination with respect to the claims of the State and to defray the expense thereof.
Continuously, from the time such resurveys were commenced, up to the date of the trial of the instant case in the lower court, the United States has treated as public lands the areas embraced in original school sections, where the State elected to execute waivers of its claim to such lands and selected in lieu thereof lands embraced in resurveyed school see-tions, and as public lands the lands embraced in resurveyed school sections, outside of the boundary lines of original school sections, where the State made no such waivers. During all that period of time, the United States has recognized homestead entries, and has issued public land patents and public land leases of portions of the land which it so treated as public lands.
On September, 18, 1959, the United States instituted this action, seeking an adjudication with respect to the title to the areas embraced in the oil and gas leases from the State to Richfield and to land in several other sections selected by the United States as test sections. The action, as commenced, involved 19 sections. Ten were eliminated by agreement of the parties. We shall now turn to the pertinent facts with respect to the 9 remaining sections involved in the action.
Copies of the original resurvey plats of the townships in which the sections involved in this lawsuit are located were introduced in evidence.
The original surveys of the townships in which the sections involved in this action were located were inaccurate or erroneous and many of the monuments were obliterated. However, the boundary lines of the original school sections were identifiable and their original location was established and they were segregated according to the best evidence available.
Where the State elected to retain the land within an original school section, such land was designated on the official plat of the resurvey as a school section; and where the State elected to take the land embraced in a resurveyed school section as lieu land, only such lieu land was designated on such official plat as a school section. The official plats also identified lands that had been patented or otherwise disposed of by the United States. Thus, such official plats indicated by implication that the remaining lands were public lands. Moreover, each plat showed the total acreage in each township and broke it down into public lands, segregated lands and patented lands. In every instance, the acreage of public lands included the areas claimed by the State in this action.
The original survey of Section 16, T. 19 N., R. 103 W., Sixth P.M., Wyoming, was approved March 13, 1884. It was resurveyed under authority of the Resurvey Act of 1903. The official plat of such resurvey was approved August 8, 1907, and the survey was accepted November 13, 1907. The following diagram of a portion of such T. 49 N., R. 103 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
There is a complete absence in the record of any showing that either the State Board of School Land Commissioners or its officers waived its claim to such Section 16, as originally surveyed, and selected in lieu thereof Lots 1 to 7, inclusive, and the remainder of Section 16, as resurveyed, pursuant to the Resolution of such Board of May 18,1906, or otherwise.
Likewise, as to the 7 sections next considered, the inaction of the State is analogous. With respect to such sections, there is no showing in the record that either the State Board of Land Commissioners or its officers waived its claim to any of such original school sections and selected in lieu thereof the land in resurveyed school sections lying outside of the former and the remainder of such resurveyed school sections, pursuant to such Resolution of May 18, 1906, or otherwise.
The original survey of Section 36, T. 50 N., R. 90 W., Sixth P.M., Wyoming, was approved December 22, 1883. It was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved August 10, 1914, and the resurvey was accepted October 21, 1914. The following diagram of a portion of such T. 50 N., R. 90 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 36, T. 51 N., R. 90 W., Sixth P.M., Wyoming, was approved December 22, 1883. It was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved August 10, 1914, and accepted October 21, 1914. The following diagram of a portion of such T. 51 N., R. 90 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 36, T. 52 N., R. 90 W., Sixth P.M., Wyoming, was approved December 22, 1883. It was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved August 10,1914, and accepted October 21, 1914. The following diagram of a portion of such T. 52 N., R. 90 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 16, T. 51 N., R. 92 W., Sixth P.M., Wyoming, was approved March 20, 1884. It was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved August 10,1914, and accepted October 21,1914. The following diagram of a portion of such T. 51 N., R. 92 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 36, T. 51 N., R. 92 W., Sixth P.M., Wyoming was approved March 20, 1884. It was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved August 10, 1914, and accepted October 21, 1914. The following diagram of a portion of such T. 51 N., R. 92 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 36, T. 52 N., R. 92 W., Sixth P.M., Wyoming, was approved March 20,1884. It was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved August 10,1914, and accepted October 21,1914. The following diagram of a portion of such T. 52 N., R. 92 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 16, T. 46 N., R. 102 W., Sixth P.M., Wyoming, was approved February 23, 1884. In 1903, by Presidential Proclamation, No. 42 (32 Stat. 2030), Section 16 was placed within the Yellowstone Forest Reserve and the State thereafter selected full indemnity land, pursuant to the Act of February 28, 1891 (26 Stat. 796). Section 16 was resurveyed under authority of the Resurvey Act of 1908. The official plat of such resurvey was approved December 13, 1919, and accepted June 4,1920. The following diagram of a portion of such T. 46 N., R. 102 W., with the accompanying legend, is based on such official plat of the resurvey and shows the location of such section as originally surveyed, as resurveyed, the conflicting claims of the parties, and other data.
The original survey of Section 16, T. 13 N., R. 105 W., Sixth P.M., Wyoming, was approved February 10, 1883. The official resurvey plat was approved November 18, 1902, and accepted February 28, 1903. The original survey placed Section 16 a considerable distance southwest of the position of Section 16, as shown by the resürvey, and no portion of the original Section 16 overlaps the resurveyed Section 16. As a result of the resurvey, the original Section 16 was segregated and designated as Lot 41. The resurveyed Section 16 was located in its normally accepted position and characterized as public lands. In addition to Section 16, the State also claims Lot 41.
In a letter dated April 4, 1924, from the Wyoming Commissioner of Public Lands to the United States Surveyor General, such Commissioner stated:
“You are advised that the position of other State lands in this township indicate that Lot 41 was the location of original Section 16 and as the acceptance of this tract by the State would connect up other State holdings, I hereby elect to accept for the State of Wyoming Lot 41 in satisfaction of the grant of original Section 16 to the State of Wyoming.”
The official resurvey plat bears a handwritten notation that “Section 16 is public lands(,) Lot 41 is School Section 16(,) See State’s letter Apr. 4, 1924.”
On the resurvey supplemental plat No. 2, approved February 15, 1927, the words “Public Land” are printed on Section 16. That plat also contains a printed “Index to Segregated Tracts” which lists resurveyed Lot 41 as “Designated School Section.”
When Congress passed the Resurvey Act of 1908, it must be presumed to have known the construction which had been placed on the Resurvey Acts of 1903 and 1905 and the effect given to such earlier Acts by the Department of the Interior and the practices and procedures followed and carried out by such Department, with respect to the lands in the original school sections and resurveyed school sections. Therefore, when Congress enacted the Resurvey Act of 1908, without substantial change in any relevant part, it manifested its approval and ratification of the administrative construction of the earlier Resurvey Acts by the Department of the Interior, the effect given thereto by such Department, and such practices and procedures.
The long administrative practice of the State, acting through its public officials, by which it took the position that it did not have title both to the lands embraced in original school sections and the additional lands within resurveyed school sections, but outside the boundaries of the former, and the fact that the United States, in the administration of the public lands in Wyoming, acted in reliance on such State administrative practices, we think preclude the State from now asserting title both to the lands embraced in original school sections and to the additional lands within resurveyed school sections, but outside of the boundaries of the former. An important consideration impelling that conclusion is the fact that to hold otherwise would create a chaotic condition with respect to titles to portions of the additional land now claimed by the State, that have been acquired by private persons from the United States.
Of course, the right of a State to surrender lands acquired under an earlier grant from the Federal Government and to select from the public domain new lands in lieu thereof must be found in an Act of Congress granting such right, and, we are of the opinion that the Department of the Interior correctly construed the Resurvey Acts and administered them in accordance with the intent of Congress with respect thereto. Only clear language would warrant imputing to Congress an intention that the State would be entitled to lands embraced in an original school section and also in a resurveyed school section and thereby enlarge, in some cases very materially, the amount of the grant to the State.
We conclude that when the boundary lines of original school sections were reestablished by resurveys thereof and such sections were identified by tract or lot numbers arid the words “School Section” inscribed on such tracts or lots, on the official plats of such resurveys, the State is entitled, under the grant to it of such school sections, only to the lands within such original school sections, unless it elected to waive its claim to such original school sections and to select in lieu thereof lands embraced in resurveyed school sections and in such ease, it is only entitled to the lands embraced within the resurveyed school sections.
Counsel for appellants rely strongly on United States v. Aikins, D.C.S.D.Cal., 1949, 84 F.Supp. 260, affd. sub nom. United States v. Livingston, 9 Cir., 1950, 183 F.2d 192. We think the facts in the Ai-kins case clearly distinguish it from the instant case.
By the Act of March 3, 1853, 10 Stat. 244, Sections 16 and 36 of the public lands in California were granted to the State of California for school purposes. In 1869, Section 36, T. 29 S., R. 20 E., M.D. B. & M., and other school land sections, were surveyed under the authority of the United States by one Reed. Between the year 1869 and the year 1893, the State of California sold and issued patents for all of the land embraced in such Section 36, as located by the Reed Survey. In 1892, another official survey of the lands within such township was ordered by the United States and such survey was made by one Carpenter and approved in 1894. By the Carpenter Survey the southerly and easterly boundaries of the township were shifted south and east and the boundaries of the lands designated as Section 36 in the Reed Survey were shifted southward and eastward. As the result of such shift by the Carpenter Survey, a portion of the lands included in such Section 36 by the Reed Survey was eliminated therefrom, and additional land, not theretofore designated in any former survey as being in any Section 36, or even in the township above mentioned, was included in such Section 36. The land involved in the Ai-kins case, being all of such additional land, was conveyed to one Jordan by the State of California as school land on December 1,1914, pursuant to a mandate of the Court of Appeals of the State of California, issued as the result of its decision in Jordan v. Kingsbury, 25 Cal.App. 166, 143 P. 69. Private claimants to the land in the Aikins case were the successors in interest to Jordan and in that case the United States sought to quiet the title to such land as against Jordan’s successors in title. In the second survey in the Aikins case, the instructions issued to Carpenter directed him to obliterate all lines and corners made by Reed. The land included in the Carpenter Survey of such township, which was not included in the Reed Survey, was wild land, had not theretofore been surveyed, and was not in any township until the Carpenter Survey. As stated by the trial court in the Aikins case, “ * * * it would have been a simple matter for the Government to have adhered to Reed’s South and East lines of the township and added the overage to the township south of Township 29, and to the township east of Range 20. * * * The¡ land in question here would thus have fallen into the northerly tier of Sections in Township 30 South, Range 20 East, and into the westerly tier of Sections in Township 29 South, Range 21 East,” but it did not do so. Rather, it chose to designate the land involved in the Aikins case as being a part of such Section 36, T. 29 S., R. 20 E. Thereafter, the State of California treated such additional land in Section 36 as school land belonging to the State. The United States took no position to the contrary and made no claim to such land until it commenced its action against Aikins almost 44 years later. In the instant case, the United States relocated the original school sections and identified them on the official plats of the resurvey as either lots or tracts and designated them as school sections, unless the State elected to accept land in a resurveyed school section in lieu of the former. Where the State elected to retain original school sections, the additional lands embraced in the resurveys were identified as lots or tracts on the official plats and were regarded and administered as public lands by the United States at all times after the resurvey; and as we have heretofore shown, prior to 1957 the State at no time made any claim to the lands involved herein and by the acts and conduct of its officials recognized that such lands were the public lands of the United States.
To have sustained the claim of the United States in the Aikins case would have invalidated a private land title that had been recognized and relied on as valid for many years. To sustain the claims of the State in the instant case would invalidate many private land titles throughout the State that have been recognized and relied on as valid for many years.
Accordingly, the judgment is affirmed.
. Hereinafter sometimes referred to as the State.
. Hereinafter called Richfield.
. The United States Surveyor-General for Wyoming; the Commissioner of the General Land Office, Department of the Interior; the Director of the United States Geological Survey; and the Secretary of the Interior.
. H.R.Report No. 2678, 57th Cong., 1st Session, June 25, 1902; S.Report No. 4342, 58th Cong., 3rd Session, Feb. 23, 1905; H.R.Report No. 1291, 60th Cong., 1st Session, March 23, 1908; 42 C.R., 60th Cong., 1st Session, pp. 7091, 7092.
. In the entire area of 12,000,000 aeres resurveyed, the record disclosed only one instance where it was noted on the records of the United States Land Office that both the area embraced in the original survey, designated as Lot 41, and the land embraced in the resurvey thereof, designated as Section 16, belonged to the State. However, that error was discovered and brought to the attention of the Commissioner of Public Lands of the State of Wyoming on April 2, 1924, with the request that the State advise which of the two tracts it wished to retain in satisfaction of the school land grant of Section 16. On April 4, 1924, the Commissioner of Public Lands of the State of Wyoming, by letter addressed to the United States Surveyor General for Wyoming, advised that the State elected to accept Lot 41, being the land embraced in such section, as located by the original survey, in satisfaction of the grant of Section 16.
. National Lead Co. v. United States, 252 U.S. 140, 146, 40 S.Ct. 237, 64 L.Ed. 496; Salt Lake County v. Utah Copper Co., 10 Cir., 93 F.2d 127, 131; Globe Indemnity Co. v. Bruce, 10 Cir., 81 P. 2d 143, 152; 82 C.J.S. Statutes § 370, pp. 854, 855.
. New Mexico v. Colorado, 267 U.S. 30, 41, 45 S.Ct. 202, 69 L.Ed. 499; United States v. Oregon, 295 U.S. 1, 10, 55 S.Ct. 610. 79 L.Ed. 1267; Michigan Land and Lumber Co. v. Rust, 168 U.S. 589, 596-599, 18 S.Ct. 208, 42 L.Ed. 591; State v. Hatch, 9 Utah 2d 288, 342 P.2d 1103, 1105-1108; State of Michigan v. Jackson, L. & S. R. Co., 6 Cir., 69 P. 116, 121, 122.
. Michigan Land and Lumber Co. v. Rust, 168 U.S. 589, 603, 18 S.Ct. 208, 42 LEd. 591.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_respondent
|
028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
O’CONNOR v. OHIO.
No. 477.
Decided November 14, 1966.
James W. Cowell for petitioner.
Harry Friberg for respondent.
Per Curiam.
This is the second time petitioner has come before this Court with the claim that the prosecutor’s comment upon his failure to testify during his trial for larceny violated the constitutional right to remain silent. In O’Connor v. Ohio, 382 U. S. 286, we considered this contention when we granted certiorari, vacated the conviction and remanded the case to the Supreme Court of Ohio for further proceedings in light of our decision in Griffin v. California, 380 U. S. 609. Following remand, the Ohio court by a closely divided vote upheld petitioner’s conviction solely on the ground that he failed to object to the proscribed comment at his trial and during his first appeal in the state courts. That failure was held to preclude the Ohio appellate courts from considering the claim that petitioner’s federal constitutional rights had been infringed.
The State does not contest the fact that the prosecutor’s remarks violated the constitutional rule announced in Griffin. Moreover, it is clear the prospective application of that rule, announced in Tehan v. Shott, 382 U. S. 406, does not prevent petitioner from relying on Griffin, since his conviction was not final when the decision in Griffin was rendered. Indeed, in Tehan we cited our remand of petitioner’s case as evidence that Griffin applied to all convictions which had not become final on the date of the Griffin judgment. 382 U. S., at 409, n. 3. Thus, the only issue now before us is the permissibility of invoking the Ohio procedural rule to defeat petitioner’s meritorious federal claim.
We hold that in these circumstances the failure to object in the state courts cannot bar the petitioner from asserting this federal right. Recognition of the States’ reliance on former decisions of this Court which Griffin overruled was one of the principal grounds for the prospective application of the rule of that case. See Tehan v. Shott, 382 U. S. 406, 417. Defendants can no more be charged with anticipating the Griffin decision than can the States. Petitioner had exhausted his appeals in the Ohio courts and was seeking direct review here when Griffin was handed down. Thus, his failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court.
We therefore grant the petition for certiorari and reverse the judgment of the Supreme Court of Ohio.
It is so ordered.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_caseorigin
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160
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
McNEAL v. CULVER, STATE PRISON CUSTODIAN.
No. 52.
Argued December 6, 1960.
Decided January 23, 1961.
Sam Daniels, acting under appointment by the Court, 362 U. S. 946, argued the cause and filed a brief for petitioner.
Odis M. Henderson, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Richard W. Ervin, Attorney General.
Mr. Justice Whittaker
delivered the opinion of the Court.
Upon an information charging “Assault to Murder in the First Degree,” petitioner was put to trial, without counsel, before a jury in a Florida court, was convicted of “Assault to Murder in the Second Degree” and sentenced to imprisonment for a term of 20 years which he is now serving. No appeal was taken, but within a year from his conviction petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Florida.
In that rather inartfully drawn petition, prepared in the penitentiary, at least the following allegations were made with reasonable clarity: When brought before the court for trial, petitioner, an indigent, ignorant and mentally ill Negro then 29 years of age, advised the court that he was without, and unable to obtain, counsel to conduct his defense and asked that counsel be appointed to represent him. The judge declined to do so, saying (1) “[S]ince this is not a capital offence you are not entitled to a court appointed attorney,” and (2) “you won’t need a Lawyer in this case.” Immediately, a jury was impaneled, the trial began, and petitioner was left to conduct his own defense. But, having “never before appeared in any court on a felony, and . . . not understand [ing] court procedure or know [ing] how to defend himself,” petitioner was unable effectively to conduct and present his defense, and, in consequence, the court’s denial of his request for counsel deprived him of due process of law guaranteed by both the Florida and the United States Constitutions.
The Florida Supreme Court issued a provisional writ of habeas corpus directing respondent to make a proper return. Respondent’s return denied that “petitioner’s constitutional rights were violated by the court’s alleged refusal to appoint counsel in his behalf,” attached a copy of (1) a partial transcript of proceedings at the trial, (2) the judgment of conviction and sentence, and (3) the commitment, and asserted that petitioner was being lawfully imprisoned under the latter document. Finding nothing “in this record of the trial to show whether or not any request was made of the trial judge to appoint counsel to aid the petitioner in his defense,” and believing “that the issues were [not] so complex, or [that] the petitioner was [not] so young, ignorant and inexperienced, as to bring into play the exception to the rule requiring appointment of counsel only in capital cases and to require further inquiry into the procedure culminating in his conviction and sentence,” the Florida Supreme Court, without any hearing upon petitioner's allegations, discharged the writ and remanded petitioner to custody. 113 So. 2d 381. We granted certiorari to determine whether the allegations in the habeas corpus petition, as supplemented by other portions of the record, are such as entitled him to a full hearing thereon, and, if so and if those allegations be found true, whether petitioner was denied due process of law guaranteed by the Fourteenth Amendment of the United States Constitution. 362 U. S. 910.
It is thoroughly settled that:
“ Where the gravity of the crime and other factors — such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto — render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair/ the Constitution requires that the accused must have legal assistance at his trial.” Cash v. Culver, 358 U. S. 633, 637, and cases cited.
The record shows that petitioner was involved in a minor altercation with the proprietors — two men named Scurry — of what is referred to as a “jook,” called the “Blue Chip,” located in the “colored quarters” of Lake Wales, Florida, during the evening of December 10, 1957, and was ordered to leave the place, which he did. Soon afterward, petitioner, “without shirt or shoes” and armed with a shotgun, approached the “Blue Chip” and, although a number of persons, including one of the Scurrys, were standing on the sidewalk, petitioner fired the gun in their direction. Some of the pellets struck the lower legs of four persons, but Scurry was not hit. City police officers immediately arrested petitioner. They stated that, in the course of transporting him to jail, petitioner said that “he was sorry he shot these other boys, he intended to kill Scurry.” On this premise, petitioner was charged with and tried for “Assault to Murder in the First Degree.”
Although the record does not disclose the extent of petitioner’s education, there is abundant evidence that it was slight. Moreover, the record shows that he suffered head injuries in the Army in 1952, and ever since has been subject to “blackout spells” when excited. For a period of months following April 8, 1956, he underwent treatment for his mental condition in the Veterans Hospital at Bay Pines, Florida, and during four months of that period he was detained in the psychopathic ward. In October 1956, he was released, apparently to his mother as his guardian, but he continued to return to the hospital to “get pills.”
The record shows that petitioner was incapable of questioning witnesses and otherwise unable to conduct his defense. The State produced four witnesses — the complaining witness, Ellix Scurry, and three police officers. Petitioner asked two questions of the witness Scurry and obtained answers thereto. His third “question” was precluded by the judge, although not objected to by the State, because “that is testifying and it isn’t time for you to testify.” Petitioner asked no further questions of Scurry, did not cross-examine the other three witnesses, nor did he make a single objection during the trial. When the State rested, the judge said to petitioner: “All right, now, Elijah, that is the State’s case. If you want to, you can take the stand and tell your side of it. If you don’t want to, you don’t have to . . . .” Petitioner then took the stand and, after mentioning his head injury, “blackout spells” and hospital treatment for his mental illness, testified that he must have suffered a “blackout spell” preceding and during the shooting incident as “that part is a complete blank,” but that he is sure he did not “intend to kill anybody.” He then attempted to put in evidence a doctor’s statement which he said verified his claim of suffering “blackout spells.” Although the State did not object, the judge said “This statement would not be admissible. You could put the doctor on and have him testify; but we cannot admit any statement like this,” and the statement was not received in evidence. At the conclusion of petitioner’s testimony, the judge said to petitioner: “Now, Lige, if you had an attorney, he would argue the case before the jury” and advised petitioner that, if he desired, he could “plead [his] case.” Petitioner replied: “Well, sir, I don’t quite understand the meaning of that,” and he did not make any argument to the jury.
These facts tend strongly to show that petitioner’s ignorance, coupled with his mental illness and complete unfamiliarity with the law and court procedures, and the scant, if any, help he received from the court, made the trial fundamentally unfair.
In addition to this showing of petitioner’s lack of education and mental illness and his consequent inability to defend himself, the record at least implicitly discloses a number of highly complex legal questions, beyond the comprehension of almost any layman.
The Florida assault law appears to be replete with distinctions and degrees. Mayhem, bare assault, assault and battery, aggravated assault and assault with intent to commit felony are all statutory offenses. Assault with intent to commit felony — apparently the crime intended to be charged against petitioner — incorporates by reference all Florida felonies and the degrees thereof. The Florida homicide statutes appear to create four separate offenses — manslaughter, and murder in the first, second and third degrees. In considering the interplay between homicide and assault with intent to commit felony, the Florida courts have held that, although one may be guilty of assault with intent to commit manslaughter, Lassiter v. State, 98 Fla. 370, 123 So. 735, there is no such thing as assault with intent to commit murder in the second or third degree because — inasmuch as those crimes do not require a finding of “intent” — such would be “an assault with intent to commit an act without intent.” Tillman v. State, 81 Fla. 558, 564, 88 So. 377, 380.
To establish the requisite “intent” to commit any of the grades or degrees of unlawful homicide “it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful and a felony, no man can intentionally do an unintentional act; and without the intent the assault can not be punished under this statute, even though the killing, had it been committed, would have amounted to a felony. . . .” Williams v. State, 41 Fla. 295, 298, 26 So. 184, 185.
If, in firing the gun, petitioner did not have this felonious “intent to kill,” his greatest possible crime would have been “Aggravated Assault” — an assault “with a deadly weapon, without intent to kill.” This is not an academic distinction, for 15 years' difference in punishment is involved. The only testimony in this record of “intent to kill” was that of the police officers who testified that while transporting him to jail on the night of the occurrence, petitioner stated that he “intended to kill Scurry.” That testimony appears to have been admitted without the slightest inquiry as to whether the statement was freely and voluntarily made by petitioner. Admission of that crucial evidence, in those circumstances, shows a patent violation of the Florida law which renders inadmissible all admissions made to law officers by an accused while under arrest unless the State affirmatively shows that they were freely and voluntarily made. Louette v. State, 152 Fla. 495, 12 So. 2d 168; Thomas v. State (Fla. 1957), 92 So. 2d 621; Williams v. State (Fla. 1954), 74 So. 2d 797. These complex and intricate legal questions were obviously “beyond the ken of a layman.” Cash v. Culver, supra, at 638.
Indeed, it is questionable whether such a crime as the one upon which petitioner was charged, tried and convicted — “Assault to Murder,” not “Assault with Intent to Commit Felony” — actually exists under the Florida law, Williams v. State, supra, and it is equally uncertain whether the verdict, convicting petitioner of “Assault to Murder in the Second Degree,” is sufficient to support the judgment in the light of 2 Fla. Stat. 1957, p. 2957, § 921.03, which contains the provision that “no judgment of guilty shall be rendered on a verdict unless the jurors clearly express in it a finding against the defendant upon the issue.” See also French v. State, 96 Fla. 657, 118 So. 815.
Moreover, the record contains facts which would have instantly suggested to counsel that petitioner might have a good insanity defense. “[W]hen there is testimony of insanity sufficient to present a reasonable doubt of sanity the presumption [of sanity] vanishes. The defendant is then entitled to an acquittal if the state does not overcome the reasonable doubt.” Farrell v. State (Fla. 1958), 101 So. 2d 130, 133. It is too much to expect this mentally ill petitioner effectively to raise and establish the defense of his own insanity, and, so far as this record shows, neither thé prosecutor nor the trial court took any notice of the matter.
The question treated in the separate concurring opinion only lurks in the record, as it was not raised, briefed or argued here, and therefore we do not reach or express any views upon it.
For the totality of the reasons reviewed, due process of law required that petitioner have the assistance of counsel at the trial of this case, if the facts and circumstances alleged in his habeas corpus petition are true. On the present record it is not possible to determine their truth. But the allegations themselves made it incumbent on the Florida court to grant petitioner a hearing and to determine what the true; facts are.
Reversed.
Such is the rule, in those circumstances, whether or not the accused requested the appointment of counsel. Uveges v. Pennsylvania, 335 U. S. 437, 441.
The following statements, made by petitioner at his trial, are clear evidence of his lack of education: “when I gets excited, I blacks out”; “I had it because I throwed it down myself”; "... without no shirt and no shoes”; “I goes and gets pills.”
On this score petitioner testified:
“When I was in the hospital, I stayed over there four months locked in the ward, psycho part of it; and the four months I was over there, I had to stay in there locked up all the time. Mama was the only one that could come and see me. And, well, about the latter part of the four months he give me a weekend pass. He was trying me to see if I would come back.
“And I went home and I come back on time. And I asked mama to come and sign for me as that was the only way I could get back. I had to have a guardian to sign. And she come over there that day and begged the doctor to let me go home.”
2 Fla. Stat. 1957, p. 2800, §§ 784.01-784.06.
2 Fla. Stat. 1957, p. 2800, §784.06, which provides:
“ASSAULT WITH INTENT TO COMMIT FELONY. — Whoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life, shall be punished by imprisonment in the state prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.”
2 Fla. Stat. 1957, p. 2798, § 782.07.
2 Fla. Stat. 1957, p. 2797, § 782.04.
2 Fla. Stat. 1957, p. 2800, § 784.04.
Five years is the maximum sentence for aggravated assault under § 784.04, whereas a 20-year sentence may be imposed for assault with intent to commit felony under § 784.06.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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sc_lcdisposition
|
C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
METROPOLITAN LIFE INSURANCE CO. v. TAYLOR
No. 85-686.
Argued January 21, 1987
Decided April 6, 1987
O’Connor, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 67.
David M. Davis argued the cause for petitioners in both cases. With him on the briefs were Eugene L. Hartwig, Daniel G. Galant, Stanley R. Strauss, George J. Pantos, William J. Toppeta, Nancy I. Mayer, James M. Lenaghan, Robert L. Stem, Paul M. Bator, and Stephen M. Shapiro.
Peter E. Scheer argued the cause and filed a brief for respondents in both cases.
Together with No. 85-688, General Motors Corp. v. Taylor, also on certiorari to the same court.
/o/m M. Vine and Harris Weinstein filed a brief for the ERISA Industry Committee as amicus curiae urging reversal.
Justice O’Connor
delivered the opinion of the Court.
In Pilot Life Ins. Co. v. Dedeaux, ante, p. 41, the Court held that state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq., are pre-empted by the Act. 29 U. S. C. § 1144 (a). The question presented by this litigation is whether these state common law claims are not only pre-empted by ERISA, but also displaced by ERISA’s civil enforcement provision, § 502(a)(1)(B), 29 U. S. C. § 1132(a)(1)(B), to the extent that complaints filed in state courts purporting to plead such state common law causes of action are removable to federal court under 28 U. S. C. § 1441(b).
General Motors Corporation, a Delaware corporation whose principal place of business is in Michigan, has set up an employee benefit plan subject to the provisions of ERISA for its salaried employees. The plan pays benefits to salaried employees disabled by sickness or accident and is insured by the Metropolitan Life Insurance Company (Metropolitan).
General Motors employed Michigan resident Arthur Taylor as a salaried employee from 1959-1980. In 1961 Taylor was involved in a job-related automobile accident and sustained a back injury. Taylor filed a workers’ compensation claim for this injury, and he eventually returned to work. In May 1980, while embroiled in a divorce and child custody dispute, Taylor took a leave of absence from his work on account of severe emotional problems. Metropolitan began paying benefits under General Motors’ employee benefit plan, but asked Taylor to submit to a psychiatric examination by a designated psychiatrist. He did so and the psychiatrist determined that Taylor was emotionally unable to work. Six weeks later, after a followup examination, however, Metropolitan’s psychiatrist determined that Taylor was now fit for work; Metropolitan stopped making payments as of July 30, 1980.
Meanwhile, Taylor had filed a supplemental claim for benefits alleging that his back injuries disabled him from continuing his work. Metropolitan again sent Taylor to be examined, this time by an orthopedist. The physician found no orthopedic problems and Metropolitan subsequently denied the supplemental disability claim. On October 31, General Motors requested that Taylor report to its medical department for an examination. That examination took place on November 5 and a General Motors physician concluded that Taylor was not disabled. When Taylor nevertheless refused to return to work, General Motors notified him that his employment had been terminated.
Six months later Taylor filed suit against General Motors and Metropolitan in Michigan state court praying for judgment for “compensatory damages for money contractually owed Plaintiff, compensation for mental anguish caused by breach of this contract, as well as immediate reimplementation of all benefits and insurance coverages Plaintiff is entitled to,” App. to Pet. for Cert, in No. 85-688, pp. 28a-29a. Taylor also asserted claims for wrongful termination of his employment and for wrongfully failing to promote him in retaliation for the 1961 worker’s compensation claim. Id., at 25a-26a. General Motors and Metropolitan removed the suit to federal court alleging federal question jurisdiction over the disability benefits claim by virtue of ERISA and pendent jurisdiction over the remaining claims. Id., at 30a. The District Court found the case properly removable and granted General Motors and Metropolitan summary judgment on the merits. 588 F. Supp. 562 (ED Mich. 1984).
The Court of Appeals reversed on the ground that the District Court lacked removal jurisdiction. 763 F. 2d 216 (CA6 1985). Noting a split in authority on the question among the federal courts, the Court of Appeals found that Taylor’s complaint stated only state law causes of action subject to the federal defense of ERISA pre-emption, and that the “well-pleaded complaint” rule of Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908), precluded removal on the basis of a federal defense. 763 F. 2d, at 219. The Court of Appeals further held that the established doctrine permitting the removal of cases purporting to state only state law causes of action in labor cases pre-empted by §301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185, did not apply to this case. 763 F. 2d, at 220. We granted certiorari, 475 U. S. 1009 (1986), and now reverse.
II
Under our decision in Pilot Life Ins. Co. v. Dedeaux, ante, p. 41, Taylor’s common law contract and tort claims are preempted by ERISA. This lawsuit “relate[s] to [an] employee benefit plan.” § 514(a), 29 U. S. C. § 1144(a). It is based upon common law of general application that is not a law regulating insurance. See Pilot Life Ins. Co. v. Dedeaux, ante, at 48-51. Accordingly, the suit is pre-empted by § 514(a) and is not saved by § 514(b)(2)(A). Ante, at 48. Moreover, as a suit by a beneficiary to recover benefits from a covered plan, it falls directly under § 502(a)(1)(B) of ERISA, which provides an exclusive federal cause of action for resolution of such disputes. Ante, at 56.
I — I HH 1 — I
The century-old jurisdictional framework governing removal of federal question cases from state into federal courts is described in Justice Brennan’s opinion for a unanimous Court in Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983). By statute “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U. S. C. § 1441(a). One category of cases over which the district courts have original jurisdiction are “federal question” cases; that is, those cases “arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331. It is long settled law that a cause of action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of federal law. Gully v. First National Bank, 299 U. S. 109 (1936); Louisville & Nashville R. Co. v. Mottley, swpra. The “well-pleaded complaint rule” is the basic principle marking the boundaries of the federal question jurisdiction of the federal district courts. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., supra, at 9-12.
Federal pre-emption is ordinarily a federal defense to the plaintiff’s suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court. Gully v. First National Bank, supra. One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character. For 20 years, this Court has singled out claims pre-empted by § 301 of the LMRA for such special treatment. Avco Corp. v. Machinists, 390 U. S. 557 (1968).
“The necessary ground of decision [in Avco] was that the pre-emptive force of §301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.” Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., supra, at 23 (footnote omitted).
There is no dispute in this litigation that Taylor’s complaint, although pre-empted by ERISA, purported to raise only state law causes of action. The question therefore resolves itself into whether or not the Avco principle can be extended to statutes other than the LMRA in order to rechar-acterize a state law complaint displaced by § 502(a)(1)(B) as an action arising under federal law. In Franchise Tax Board, the Court held that ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S., at 25-27. The court suggested, however, that a state action that was not only pre-empted by ERISA, but also came “within the scope of § 502(a) of ERISA” might fall within the Avco rule. Id., at 24-25. The claim in this case, unlike the state tax collection suit in Franchise Tax Board, is within the scope of § 502(a) and we therefore must face the question specifically reserved by Franchise Tax Board.
In the absence of explicit direction from Congress, this question would be a close one. As we have made clear today in Pilot Life Ins. Co. v. Dedeaux, ante, at 54, “[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.” Cf. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S., at 25-26 (“Unlike the contract rights at issue in Avco, the State’s right to enforce its tax levies is not of central concern to the federal statute”). Even with a provision such as § 502(a)(1)(B) that lies at the heart of a statute with the unique pre-emptive force of ERISA, id., at 24, n. 26, however, we would be reluctant to find that extraordinary-pre-emptive power, such as has been found with respect to § 301 of the LMRA, that converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule. But the language of the jurisdictional subsection of ERISA’s civil enforcement provisions closely parallels that of § 301 of the LMRA. Section 502(f) says:
“The district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action.” 29 U. S. C. § 1132(f).
Cf. § 301(a) of the LMRA, 29 U. S. C. § 185(a). The presumption that similar language in two labor law statutes has a similar meaning is fully confirmed by the legislative history of ERISA’s civil enforcement provisions. The Conference Report on ERISA describing the civil enforcement provisions of § 502(a) says:
“[W]ith respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the title I provisions, they may be brought not only in U. S. district courts but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section SOI of the Labor-Management Relations Act of 194-7.” H. R. Conf. Rep. No. 93-1280, p. 327 (1974) (emphasis added).
No more specific reference to the Avco rule can be expected and the rest of the legislative history consistently sets out this clear intention to make § 502(a)(1)(B) suits brought by participants or beneficiaries federal questions for the purposes of federal court jurisdiction in like manner as § 301 of the LMRA. See Pilot Life Ins. Co. v. Dedeaux, ante, at 54-55. For example, Senator Williams, a sponsor of ERISA, emphasized that the civil enforcement section would enable participants and beneficiaries to bring suit to recover benefits denied contrary to the terms of the plan and that when they did so “[i]t is intended that such actions will be regarded as arising under the laws of the United States, in similar fashion to those brought under section 301 of the Labor Management Relations Act.” 120 Cong. Rec. 29933 (1974). See also id., at 29942 (remarks of Sen. Javits) (federal substantive law to “deal with issues involving rights and obligations under private welfare and pension plans”).
Taylor argues strenuously that this action cannot be removed to federal court because it was not “obvious” at the time he filed suit that his common law action was both preempted by § 514(a), 29 U. S. C. § 1144(a), and also displaced by the civil enforcement provisions of § 502(a). See Brief for Respondent 14-21. But the touchstone of the federal district court’s removal jurisdiction is not the “obviousness” of the pre-emption defense but the intent of Congress. Indeed, as we have noted, even an “obvious” pre-emption defense does not, in most cases, create removal jurisdiction. In this case, however, Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of § 502(a) removable to federal court. Since we have found Taylor’s cause of action to be within the scope of § 502(a), we must honor that intent whether pre-emption was obvious or not at the time this suit was filed.
Accordingly, this suit, though it purports to raise only state law claims, is necessarily federal in character by virtue of the clearly manifested intent of Congress. It, therefore, “arise[s] under the . . . laws ... of the United States,” 28 U. S. C. § 1331, and is removable to federal court by the defendants, 28 U. S. C. § 1441(b). The judgment of the Court of Appeals is
Reversed.
Section 502(a)(1)(B) provides:
“A civil action may be brought—
“(1) by a participant or beneficiary—
“(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”
Compare Clorox Co. v. United States District Court, 779 F. 2d 517, 521 (CA9 1985); Roe v. General American Life Ins. Co., 712 F. 2d 450, 452 (CA10 1983); Leonardis v. Local 282 Pension Trust Fund, 391 F. Supp. 554, 556-557 (EDNY 1975); Tolson v. Retirement Committee of the Briggs & Stratton Retirement Plan, 566 F. Supp. 1503, 1504 (ED Wis. 1983) (all finding removal jurisdiction), with Taylor v. General Motors Corp., 763 F. 2d 216, 219-220 (CA6 1985); Powers v. South Central United Food & Commercial Workers Unions, 719 F. 2d 760, 763-767 (CA5 1983) (no removal jurisdiction).
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_r_natpr
|
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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Respondent.
No. 18340.
United States Court of Appeals Ninth Circuit.
July 15, 1963.
Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Hans J. Lehman and Allison Brown, Attys., N. L. R. B., Washington, D. C., for petitioner.
Francis X. Ward, William P. McGowan, Washington, D. C., McCarthy Johnson, Herbert S. Johnson, San Francisco, Cal., for respondent, United Brotherhood of Carpenters and Joiners of America.
Before JERTBERG, Circuit Judge, MADDEN, Judge of the Court of Claims, and DUNIWAY, Circuit Judge.
MADDEN, Judge.
Pursuant to Section 10(e) of the National Labor Relations Act, as amended [29 U.S.C. § 160(e)], the National Labor Relations Board has petitioned this Court for enforcement of its Supplemental Decision and Order issued against United Brotherhood of Carpenters and Joiners of America on September 26, 1961, in Case No. 19-CB-530. This Court has jurisdiction since the unfair labor practices which were the basis for said Order occurred at or near Laurel, Montana, within this judicial circuit.
The National Labor Relations Board (hereinafter referred to as Board) found that the United Brotherhood of Carpenters and Joiners of America (hereinafter referred to as Union) has maintained an illegal closed shop contract with The Refinery Engineering Company (hereafter referred to as Company) during the six month period prior to the filing of charges in this matter. The Board ordered Union to cease and desist from performing, maintaining or enforcing any agreement or understanding with the Company, or any other employer, which requires union membership as a condition of employment, except as authorized by Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor Management Report and Disclosure Act of 1959; and from in any like or related manner restraining employees in the exercise of their rights guaranteed by Section 7 of said Act. The Order further provided that Union post appropriate notices in all locations where notices to its members are customarily posted, and if Company agrees thereto, in places where Company customarily posts notices to the employees covered by the contract between the Company and Union. Union was also directed to publish the notice once in its publications generally distributed to its membership.
Union resists the enforcement of the Board’s Order on two asserted grounds: (1) The Board’s finding that the Union maintained agreements containing closed shop provisions is not supported by substantial evidence on the record considered as a whole; and (2) In any event, the remedy proposed by the Board is arbitrary, unreasonable, and not appropriate to the unfair labor practice found by it.
As to the first of these objections, Section 10(e) of the National Labor Relations Act provides: “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.”
From an inspection of the record it appears that there is substantial evidence in the record to support the findings of the Board. On May 5,1956, Union entered into a written agreement entitled “International Agreement” with Company which contained the following provision:
“We, the firm of The Refinery Engineering Company, agree to recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and abide by the rules and regulations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenters and Joiners.”
This agreement between Union and Company was in effect during the six months’ period preceding the filing of the instant charge against Union on April 14, 1958, by a worker employed by Company on a construction project at or near Laurel, Montana. At the same time, Billings Local 1172 of the United Brotherhood of Carpenters and Joiners of America (hereinafter referred to as Local 1172) maintained an agreement with Billings Contractors Council, Inc., the local employers’ group, which provided:
“The party of the first part [Billings Contractors] hereby agrees to employ such members of the party of the second part [Local 1172] who are in good standing with the party of the second part, or who shall signify their intentions to become members and make application for membership. Party of the second part agrees to hold employers harmless against any loss which may accrue to them in any manner through the operation of this paragraph.
******
“ARTICLE IV
“There shall be a shop Steward appointed by the party of the second part, and it shall be the duty of the Shop Steward to see that only members of the party of the second part are in good standing and in the case of accident the job Steward shall see that the injured person or persons shall be promptly taken care of, and report any and all violations of this agreement to both parties interested.”
Article X of the “By-Laws and Trade Rules” of Local 1172 then in effect provided, inter alia, that a non-union man may be permitted on the job if he gives a cash guarantee that he will join the Local Union, in which case he must give the union a wage assignment unless he can pay the Union at least $10.
Union has stated in its brief that these provisions of the agreement between Local 1172 and the Billings Contractors Council, Inc., and the By-Laws and Trade Rules of Local 1172 are admittedly discriminatory, but urges that they were not incorporated by reference in the International Agreement with Company. There is no support for this contention. Company has clearly bound itself by the “International Agreement” to “abide by the rules and regulations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenter and Joiners.” (Emphasis added). Since Local 1172 was the local representative of Union, the International Agreement incorporated by reference the agreement between Local 1172 and the Billings Contractors Council, Inc. as well as the by-laws and trade rules of Local 1172.
The record, therefore, supports the Board’s finding that Union by maintaining its closed shop contract with Company during the period in question violated Section 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act.
Union terminated its 1956 International Agreement with Company on or before August, 1958, and entered a new agreement with Company which is presumably in conformity with the requirements of the National Labor Relations Act. However, the fact that Union had ceased its unfair labor practices in connection with the Laurel job did not preclude the issuance and enforcement of an order against such conduct. N. L. R. B. v. Local Union No. 751, United Brotherhood of Carpenters, etc., et al., 285 F.2d 633, 638 (C.A.9); N. L. R. B. v. Local 74, United Brotherhood of Carpenters & Joiners of America, 181 F.2d 126, 132-133 (C.A.6), affirmed 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309; N. L. R. B. v. United Brotherhood of Carpenters, 184 F.2d 60, 63 (C.A.10), cert. denied 341 U.S. 947, 71 S.Ct. 1011, 95 L.Ed. 1371. Board orders have a preventive as well as remedial function, and the Board is entitled to a decree barring resumption of conduct properly found to have been illegal. N. L. R. B. v. Mexia Textile Mills, 1950, 339 U.S. 563, 567, 70 S.Ct. 826, 828, 94 L.Ed. 1067; N. L. R. B. v. International Association of Machinists, 279 F.2d 761, 767 (C.A.9), cert. den., 364 U.S. 890, 81 S.Ct. 221, 5 L.Ed.2d 187.
Union claims that, even if the Board was correct in its finding that Union maintained agreements containing illegal closed shop provisions, the remedy proposed, particularly by way of publication in its official publications of general circulation among its members, is arbitrary, unreasonable and not appropriate to the unfair practice so found. The Court finds no merit in this objection. Company maintains its home office in Tulsa, Oklahoma, and undertakes construction projects throughout the United States. The “International Agreement” between Union and Company was obviously intended to cover Company’s employees wherever they were engaged. The Union is active throughout the United States. It would be futile to require only the posting of this notice in the national headquarters of Union, or even to supplement the posting requirement with an order for publication limited to the State of Montana where the instant unfair practice occurred, for only a small portion of the workers potentially affected would be reached.
Union further urges that the order for publication should not be allowed because there was no evidence in the record that any employee had actually been discriminated against under the closed shop contract here involved. But the mere existence of a contract containing illegal union security provisions constitutes a violation of the Act and justifies the issuance of a remedial order by the Board. See N. L. R. B. v. Gottfried Baking Co., 1954, 2 Cir., 210 F.2d 772; N. L. R. B. v. Sightseeing Guides and Lecturers Union, 310 F.2d 40 (C.A.2).
The statutory measure of the Board’s authority to remedy against an unfair labor practice is found in Section 10(c) of the National Labor Relations Act [29 U.S.C. Sec. 160(c)] which empowers it upon finding that an unfair labor practice has been committed to order the guilty party to “cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement, of employees with or without back pay, as mil effectuate the policies of the Act.” (Emphasis added). It is clearly the policy of the Act that the closed shop shall be abolished. In fashioning a remedy to effectuate this policy, the Board properly took notice that this was not an isolated instance of this type of misconduct, but that the Union had been found by the Board and the courts to have violated the anticlosed shop provisions of the Act on several occasions; The Marley Co., 117 N.L.R.B. 107; Mechanical Handling Systems, 122 N.L.R.B. 396, enforced sub nom. N. L. R. B. v. Local 60, United Brotherhood of Carpenters, etc., 273 F.2d 699 (C.A.7); Millrights Local 2232, 122 N.L.R.B. 300, enforced sub nom. N. L. R. B. v. Millwrights’ Local 2232, 277 F.2d 217 (C.A.5), and that unless adequate notice was given of its order in this matter these activities might well continue or be resumed. The requirement that Union publish a notice of the order at least once in its publications generally distributed to its membership is a reasonable requirement in light of the circumstances here involved.
The Board did not abuse its discretion in formulating the order issued against Union, and enforcement of its order is granted.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_3_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
PANDOLFO v. ACHESON, Secretary of State of United States.
No. 147, Docket 22547.
United States Court of Appeals Second Circuit.
Argued Jan. 12, 1953.
Decided Feb. 13, 1953.
Myles J. Lane, U. S. Atty., and Benjamin F. Nolan, Asst. U. S. Atty., New York City, of counsel, for appellant.
Casper & Nehrbas, New York City, Montague Casper, New York City, of counsel, for appellee.
Before SWAN, Chief Judge, and AUGUSTUS N. HAND and CHASE, Circuit Judges.
SWAN, Chief Judge.
Vincenzo Pandolfo was horn in the United States in 1912. Two years later his parents, who were Italian nationals, went hack to Italy, taking their infant son with them. There he remained until 1949 when he obtained a certificate of identity enabling him to return to the United States to prosecute the present action under section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, for a judgment declaring him to be a national of the United States. The defense of the action was that under section 2 of the Act of March 2, 1907, the plaintiff lost his American citizenship by serving in the Italian Army and taking an oath of allegiance to the King of Italy in 1933. The trial court found that his oath was taken under duress, and gave judgment for the plaintiff. The defendant has appealed.
The relevant provisions of the statute upon which the Government relies are printed in the margin. Concededly the oath of allegiance taken by the plaintiff would operate to expatriate him if taken voluntarily, but would not if taken under duress. Consequently the question presented by the appeal is whether the ruling that his oath was taken under duress is supportable on the facts developed at the trial.
There is no dispute as to the facts. The only testimony was given by the plaintiff; the other evidence was documentary, for the most part consisting of the plaintiff’s Italian military service record. Because of his birth in the United States, his Italian parentage, and his residence in Italy from early childhood, he possessed dual nationality and citizenship. As ari Italian national he was subject to be called up'for military service, and he registered for it as required by Italian law. On February 24, 1933 he became 21 years old. Shortly before November 1933 he received a card directing him to report for military service on November 3. He reported as directed but he testified “I didn’t do this of ,my. own free will. I was forced to go for military duty.” He said that if he had not reported, he would have been picked up by the Italian police the next morning. He was then sent' to. the. induction station at Siracusa, Italy. The appellant stresses the fact that, plaintiff did not protest to any United States consulate that he was being forced to enter Italian military service under duress. But in view of his very limited schooling and the distance he would have had to travel to reach an American consulate such failure to protest should not be taken as conclusive proof that his induction was .voluntary. Moreover, he testified that he told the officer in charge at Siracusa that he was an American citizen and “should not be obligated to serve in the Italian Army.” During the period in question an oath of allegiance was required and was administered “en masse” to all recruits. Plaintiff took such oath together with his fellow recruits on December 10, 1933. He .was discharged from the Italian Army on December 1, 1935. Thereafter on November 1, 1939 he was recalled to active military duty and served until 1943. The appellant does not rely on this second service as a ground of expatriation. On August 18, 1944 plaintiff made a formal application for an American passport and registered under the United States Selectivé Service Act at Palermo', Italy.
It was also brought out at the trial that plaintiff could have returned to the United States before he was inducted into the Italian Army. On May 5, 1930 he applied to the United States Consulate at Messina, Italy, for a determination of his claim to American citizenship. On November 21, 1930 the issuance to him of a United States passport was authorized. At the same time a passport was authorized for his sister. She came to the United States in September 1931 but he did nothing to obtain the passport authorized for him. The trial court’s opinion states that he gave no “credible explanation for his failure to leave Italy and return to the United States, before he was required to serve in the Italian Army under his dual citizenship."
We agree with the Government’s contention as to burden of proof' in a suit of this character. The plaintiff has the burden of proving that he is a United States citizen. He made a prima facie case by alleging and proving his birth in New York. The Government then had the burden of showing that he had expatriated himself. This it did by proof of his oath of allegiance to the King of Italy. Presumptively • this oath was voluntarily taken. He then had the burden of going forward with evidence to establish that it was taken under duress. The trial court found that this was the fact. The appellant contends that the court should not have accepted the plaintiff’s uncorroborated testimony, and particularly since other portions of his testimony were found incredible. But it is elementary that the trier of facts need not discredit all the testimony of a witness because part of it is not believed. There is no legal requirement that testimony of duress be corroborated by documentary or other proof. The trial judge saw the witness and believed his testimony that induction into military service and the oath thereafter taken was done under duress. We cannot say that the finding of duress was “clearly erroneous,” as we must to reverse the finding.
The appellant also argues that plaintiff’s failure to remove himself from the jurisdiction of the Italian authorities before he was called for military service in 1933 was the proximate cause of his induction and therefore the oath was taken voluntarily. But the recent decision of the Supreme Court in Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, establishes that continued residence abroad after a minor citizen comes of age does not forfeit citizenship. Since the 1907 Act does not impose any duty to make an election to return to the United States when the minor comes of age, we cannot accept the argument that whatever he does thereafter in the foreign country is done voluntarily.
Nor do we find any merit in the contention that his failure to take conclusive steps to leave Italy during the four years he enjoyed civilian status in Italy between the two periods of his military service operated as a ratification by subsequent conduct of his “expatriating act.” If the 1933 oath was taken voluntarily, it needs no ratification as an expatriating act. If it was done under duress, subsequent conduct cannot make it voluntary.
In our view the appeal presents a very narrow issue. The trial court found that the plaintiff acted under duress as he testified and as may reasonably be ¡believed under the circumstances, since Italy regarded him as an Italian citizen, subject to military service. We cannot hold that the finding was clearly erroneous. Cf. Attorney General of United States v. Ricketts, 9 Cir., 165 F.2d 193, 195.
Judgment affirmed.
. Section 2 of the Act of March 2, 1907, 34 Stat. 1228, provides:
“That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state.”
This provision was preserved as § 401 (b) of the Nationality Act of 1940, 8 U. S.C.A. § 801(b).
. Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; Podea v. Acheson, 2 Cir., 179 F.2d 306; Doreau v. Marshall, 3 Cir., 170 F.2d 721; cf. Revedin v. Acheson, 2 Cir., 194 F.2d 482, certiorari denied, 344 U.S. 820, 73 S.Ct. 17.
. As to this service the appellant’s brief .says:
“Under provisions of Section 401(c) of the Nationality Act of 1940, the military service, itself, was sufficient basis to support additional grounds for expatriation. Under this Section the taking of the oath of allegiance to the foreign state is not a prerequisite. However, the Government has not urged this additional ground of expatriation against plaintiff consistent with the views expressed by the Attorney General of the United States in Matter of A-, No. 56158/416, 2 I. & N. Dec. 304, 1945, to the effect that where such service could not be terminated on or before January 13, 1941, the effective date of the Nationality Act of 1940, the service performed after the effective date should be regarded as involuntary on the theory that it was unlikely that such a soldier who entered service in 1939 could have had any voice in terminating his military service on or before January 13, 1941. This second period of military service will, however, be offered by the Government, herein, under Point V, as evidence tending to show that plaintiff ratified his expatriating act of 1933 by making himself available for and entering this second period of Italian military service without protest.”
. Bauer v. Clark, 7 Cir., 161 F.2d 397, 400, certiorari denied 332 U.S. 839, 68 S.Ct. 210, 92 L.Ed. 411, rehearing denied 332 U.S. 849, 68 S.Ct. 342, 92 L.Ed. 419.
. See In re Gogal, D.C.Pa., 75 F.Supp. 268.
. Had the trial court found the oath to have been the plaintiff’s voluntary act, ■wo would not have reversed such finding as clearly erroneous. See Kondo v. Acheson, D.C.Cal., 98 F.Supp. 884, 888; Hamamoto v. Acheson, D.C.Cal., 98 F.Supp. 904, 908; Zimmer v. Acheson, D.C.Kan., 91 F.Supp. 313, affirmed 10 Cir., 191 F.2d 209.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
TURNER BROADCASTING SYSTEM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 95-992.
Argued October 7, 1996
Decided March 31, 1997
H. Bartow Farr III argued the cause for appellants. With him on the briefs for appellant National Cable Television Association, Inc., were Richard G. Taranto, Daniel L. Brenner, Neal M. Goldberg, and Diane B. Burstein. Bruce D. Sokler, Christopher A. Holt, Bertram W. Carp, Bruce D Collins, Neal S. Grabell, and James H. Johnson filed a brief for appellants Turner Broadcasting System, Inc., et al. Albert G. Lauber, Jr., Peter Van N Lockwood, Judith A. McHale, and Diane L. Hofbauer filed a brief for appellants Discovery Communications, Inc., et al. Robert D. Joffe, Stuart W. Gold, Rowan D. Wilson, Brian Conboy, and Theodore Case Whitehouse filed a brief for appellant Time Warner Entertainment Co.
' Acting Solicitor General Dellinger argued the cause for appellees. With him on the briefs for the federal appellees were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, Paul R. Q. Wolf-son, Douglas N. Letter, Bruce G. Forrest, William E. Ken-nard, and Christopher J. Wright. Bruce J. Ennis, Jr., argued the cause and filed a brief for appellees National Association of Broadcasters et al. With him on the brief were Kit A. Pierson, Donald B. Verrilli, Jr., Thomas J. Perrelli, Jack N. Goodman, Benjamin F. P. Ivins, Kathleen M. Sullivan, and James J. Popham. Carolyn F. Corwin, Mark H. Lynch, Marilyn Mohrman-Gillis, and Paula A. Jameson filed a brief for appellees Association of America’s Public Television Stations et al. Andrew Jay Schwartzman, Gigi B. Sohn, and Elliot M. Mincberg filed a brief for appellees Consumer Federation of America et al.
Justice Kennedy
delivered the opinion of the Court, except as to a portion of Part II-A-1.
Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 require cable television systems to dedicate some of their channels to local broadcast television stations. Earlier in this case, we held the so-called “must-carry” provisions to be content-neutral restrictions on speech, subject to intermediate First Amendment scrutiny under United States v. O’Brien, 391 U. S. 367, 377 (1968). A plurality of the Court considered the record as then developed insufficient to determine whether the provisions were narrowly tailored to further important governmental interests, and we remanded the case to the District Court for the District of Columbia for additional factfinding.
On appeal from the District Court’s grant of summary judgment for appellees, the case now presents the two questions left open during the first appeal: First, whether the record as it now stands supports Congress’ predictive judgment that the must-carry provisions further important governmental interests; and second, whether the provisions do not burden substantially more speech than necessary to further those interests. We answer both questions in the affirmative, and conclude the must-carry provisions are consistent with the First Amendment.
I
An outline of the Cable Act, Congress’ purposes in adopting it, and the facts of the case are set out in detail in our first opinion, see Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) (Turner), and a more abbreviated summary will suffice here. Soon after Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act), Pub. L. 102-385, 106 Stat. 1460, appellants brought suit against the United States and the Federal Communications Commission (FCC) (both referred to here as the Government) in the United States District Court for the District of Columbia, challenging the constitutionality of the must-carry provisions under the First Amendment. The three-judge District Court, in a divided opinion, granted summary judgment for the Government and intervenor-defendants. A majority of the court sustained the must-carry provisions under the intermediate standard of scrutiny set forth in United States v. O’Brien, supra, concluding the must-carry provisions were content-neutral “industry-specific antitrust and fair trade” legislation narrowly tailored to preserve local broadcasting beset by monopoly power in most cable systems, growing concentration in the cable industry, and concomitant risks of programming decisions driven by anticompetitive policies. 819 F. Supp. 32, 40, 45-47 (1993).
On appeal, we agreed with the District Court that must-carry does not “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed,” 512 U. S., at 643, but is a content-neutral regulation designed “to prevent cable operators from exploiting their economic power to the detriment of broadcasters,” and “to ensure that all Americans, especially those unable to subscribe to cable, have access to free television programming — whatever its content.” Id., at 649. We held that, under the intermediate level of scrutiny applicable to content-neutral regulations, must-carry would be sustained if it were shown to further an important or substantial governmental interest unrelated to the suppression of free speech, provided the incidental restrictions did not “ ‘burden substantially more speech than is necessary to further’ ” those interests. Id., at 662 (quoting Ward v. Rock Against Racism, 491 U. S. 781, 799 (1989)). Although we “ha[d] no difficulty concluding” the interests must-carry was designed to serve were important in the abstract, 512 U. S., at 663, a four-justice plurality concluded genuine issues of material fact remained regarding whether “the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry,” and whether must-carry “‘burden[s] substantially more speech than is necessary to further the government’s legitimate interests.’ ” Id., at 665 (quoting Ward, supra, at 799). Justice Stevens would have found the statute valid on the record then before us; he agreed to remand the case to ensure a judgment of the Court, and the case was returned to the District Court for further proceedings. 512 U. S., at 673-674 (opinion concurring in part and concurring in judgment); id., at 667-668.
The District Court oversaw another 18 months of factual development on remand “yielding a record of tens of thousands of pages” of evidence, Turner Broadcasting v. FCC, 910 F. Supp. 734, 755 (1995), comprised of materials acquired during Congress’ three years of pre-enactment hearings, see Turner, supra, at 632-634, as well as additional expert submissions, sworn declarations and testimony, and industry documents obtained on remand. Upon consideration of the expanded record, a divided panel of the District Court again granted summary judgment to appellees. 910 F. Supp., at 751. The majority determined “Congress drew reasonable inferences” from substantial evidence before it to conclude that “in the absence of must-carry rules, ‘significant’ numbers of broadcast stations would be refused carriage.” Id., at 742. The court found Congress drew on studies and anecdotal evidence indicating “cable operators had already dropped, refused to carry, or adversely repositioned significant numbers of local broadcasters,” and suggesting that in the vast majority of cases the broadcasters were not restored to carriage in their prior position. Ibid. Noting evidence in the record before Congress and the testimony of experts on remand, id., at 743, the court decided the noncarriage problem would grow worse without must-carry because cable operators had refrained from dropping broadcast stations during Congress’ investigation and the pend-ency of this litigation, id., at 742-743, and possessed increasing incentives to use their growing economic power to capture broadcasters’ advertising revenues and promote affiliated cable programmers, ibid. The court concluded “substantial evidence before Congress” supported the predictive judgment that a local broadcaster denied carriage “would suffer financial harm and possible ruin.” Id., at 743-744. It cited evidence that adverse carriage actions decrease broadcasters’ revenues by reducing audience levels, id., at 744-745, and evidence that the invalidation of the FCC’s prior must-carry regulations had contributed to declining growth in the broadcast industry, id., at 744, and n. 34.
The court held must-carry to be narrowly tailored to promote the Government’s legitimate interests. It found the effects of must-carry on cable operators to be minimal, noting evidence that: most cable systems had not been required to add any broadcast stations since the rules were adopted; only 1.2 percent of all cable channels had been devoted to broadcast stations added because of must-carry; and the burden was likely to diminish as channel capacity expanded in the future. Id., at 746-747. The court proceeded to consider a number of alternatives to must-carry that appellants had proposed, including: a leased-access regime, under which cable operators would be required to set aside channels for both broadcasters and cable programmers to use at a regulated price; use of so-called A/B switches, giving consumers a choice of both cable and broadcast signals; a more limited set of must-carry obligations modeled on those earlier used by the FCC; and subsidies for broadcasters. The court rejected each in turn, concluding that “even assuming that [the alternatives] would be less burdensome” on cable operators’ First Amendment interests, they “are not in any respect as effective in achieving the government’s [interests].” Id., at 747. Judge Jackson would have preferred a trial to summary judgment, but concurred in the judgment of the court. Id., at 751-754.
Judge Williams dissented. His review of the record, and particularly evidence concerning growth in the number of broadcasters, industry advertising revenues, and per-station profits during the period without must-carry, led him to conclude the broadcast industry as a whole would not be “ ‘seriously jeopardized’” in the absence of must-carry. Id., at 759-767. Judge Williams acknowledged the Government had a legitimate interest in preventing anticompetitive behavior, and accepted that cable operators have incentives to discriminate against broadcasters in favor of their own vertically integrated cable programming. Id., at 772, 775, 779. He would have granted summary judgment for appellants nonetheless on the ground must-carry is not narrowly tailored. In his view, must-carry constitutes a significant (though “diminish[ing],” id., at 782) burden on cable operators’ and programmers’ rights, ibid., and the Cable Act’s must-carry provisions suppress more speech than necessary because “less-restrictive” alternatives exist to accomplish the Government’s legitimate objectives, id., at 782-789.
This direct appeal followed. See 47 U. S. C. § 555(c)(1); 28 U. S. C. § 1253. We noted probable jurisdiction, 516 U. S. 1110 (1996), and we now affirm.
II
We begin where the plurality ended in Turner, applying the standards for intermediate scrutiny enunciated in O’Brien. A content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. O’Brien, 391 U. S., at 377. As noted in Turner, must-carry was designed to serve “three interrelated interests: (1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming.” 512 U. S., at 662. We decided then, and now reaffirm, that each of those is an important governmental interest. We have been most explicit in holding that “ ‘protecting noncable households from loss of regular television broadcasting service due to competition from cable systems’ is an important federal interest.” Id., at 663 (quoting Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 714 (1984)). Forty percent of American households continue to rely on over-the-air signals for television programming. Despite the growing importance of cable television and alternative technologies, “ ‘broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation’s population.’ ” Turner, supra, at 663 (quoting United States v. Southwestern Cable Co., 392 U. S. 157, 177 (1968)). We have identified a corresponding “governmental purpose of the highest order” in ensuring public access to “a multiplicity of information sources,” 512 U. S., at 663. And it is undisputed the Government has an interest in “eliminating restraints on fair competition..., even when the individuals or entities subject to particular regulations are engaged in expressive activity protected by the First Amendment.” Id., at 664.
On remand, and again before this Court, both sides have advanced new interpretations of these interests in an attempt to recast them in forms “more readily proven.” 910 F. Supp., at 759 (Williams, J., dissenting). The Government downplays the importance of showing a risk to the broadcast industry as a whole and suggests the loss of even a few broadcast stations “is a matter of critical importance.” Tr. of Oral Arg. 23. Taking the opposite approach, appellants argue Congress’ interest in preserving broadcasting is not implicated unless it is shown the industry as a whole would fail without must-carry, Brief for Appellant National Cable Television Association, Inc. 18-23 (NCTA Brief); Brief for Appellant Time Warner Entertainment Co., L. P. 8-10 (Time Warner Brief), and suggest Congress’ legitimate interest in “assuring that the public has access to a multiplicity of information sources,” Turner, supra, at 663, extends only as far as preserving “a minimum amount of television broadcast service,” Time Warner Brief 28; NCTA Brief 40; Reply Brief for Appellant NCTA 12.
These alternative formulations are inconsistent with Congress’ stated interests in enacting must-carry. The congressional findings do not reflect concern that, absent must-carry, “a few voices,” Tr. of Oral Arg. 23, would be lost from the television marketplace. In explicit factual findings, Congress expressed clear concern that the “marked shift in market share from broadcast television to cable television services,” Cable Act §2(a)(13), note following 47 U. S. C. §521, resulting from increasing market penetration by cable services, as well as the expanding horizontal concentration and vertical integration of cable operators, combined to give cable systems the incentive and ability to delete, reposition, or decline carriage to local broadcasters in an attempt to favor affiliated cable programmers. §§2a(2)-(5), (15). Congress predicted that “absent the reimposition of [must-carry], additional local broadcast signals will be deleted, repositioned, or not carried,” §2(a)(15); see also § 2(a)(8)(D), with the end result that “the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized,” §2(a)(16).
At the same time, Congress was under no illusion that there would be a complete disappearance of broadcast television nationwide in the absence of must-carry. Congress recognized broadcast programming (and network programming in particular) “remains the most popular programming on cable systems,” §2(a)(19). Indeed, reflecting the popularity and strength of some broadcasters, Congress included in the Cable Act a provision permitting broadcasters to charge cable systems for carriage of the broadcasters’ signals. See § 6, codified at 47 U. S. C. § 325. Congress was concerned not that broadcast television would disappear in its entirety without must-carry, but that without it, “significant numbers of broadcast stations will be refused carriage on cable sys-terns,” and those “broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether.” 512 U. S., at 666. See, e. g., H. R. Rep. No. 102-628, p. 51 (1992) (House Report) (the absence of must-carry “will result in a weakening of the over-the-air television industry and a reduction in competition”); id,., at 64 (“The Committee wishes to make clear that its concerns are not limited to a situation where stations are dropped wholesale by large numbers of cable systems”); S. Rep. No. 102-92, p. 62 (1991) (Senate Report) (“Without congressional action,... the role of local television broadcasting in our system of communications will steadily decline...”); see also Brief for Federal Appellees in Turner Broadcasting System, Inc. v. FCC, No. 93-44, p. 32, n. 22 (the question is not whether “the evidence shows that broadcast television is likely to be totally eliminated” but “whether the broadcast services available to viewers [without cable] are likely to be reduced to a significant extent, because of either loss of some stations altogether or curtailment of services by others”).
Nor do the congressional findings support appellants’ suggestion that legitimate legislative goals would be satisfied by the preservation of a rump broadcasting industry providing a minimum of broadcast service to Americans without cable. We have noted that “ fit has long been a basic tenet of national communications policy that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” ’ ” Turner, 512 U. S., at 663-664 (quoting United States v. Midwest Video Corp., 406 U. S. 649, 668, n. 27 (1972) (plurality opinion), in turn quoting Associated Press v. United States, 326 U. S. 1, 20 (1945)); see also FCC v. WNCN Listeners Guild, 450 U. S. 582, 594 (1981). “ ‘[increasing the number of outlets for community self-expression’” represents a “‘long-established regulatory goa[l] in the field of television broadcasting.’ ” United States v. Midwest Video Corp., supra, at 667-668 (plurality opinion). Consistent with this objective, the Cable Act's findings reflect a concern that congressional action was necessary to prevent “a reduction in the number of media voices available to consumers.” §2(a)(4). Congress identified a specific interest in “ensuring [the] continuation” of “the local origination of [broadcast] programming,” §2(a)(10), an interest consistent with its larger purpose of promoting multiple types of media, § 2(a)(6), and found must-carry necessary “to serve the goals” of the original Communications Act of 1934 of “providing a fair, efficient, and equitable distribution of broadcast services,” § 2(a)(9). In short, Congress enacted must-carry to “preserve the existing structure of the Nation’s broadcast television medium while permitting the concomitant expansion and development of cable television.” 512 U. S., at 652.
Although Congress set no definite number of broadcast stations sufficient for these purposes, the Cable Act’s requirement that all cable operators with more than 12 channels set aside one-third of their channel capacity for local broadcasters, §4,47 U. S. C. § 534(b)(1)(B), refutes the notion that Congress contemplated preserving only a bare minimum of stations. Congress’ evident interest in “preserving] the existing structure,” 512 U. S., at 652, of the broadcast industry discloses a purpose to prevent any significant reduction in the multiplicity of broadcast programming sources available to noncable households. To the extent the appellants question the substantiality of the Government’s interest in preserving something more than a minimum number of stations in each community, their position is meritless. It is for Congress to decide how much local broadcast television should be preserved for noncable households, and the validity of its determination “ ‘does not turn on a judge’s agreement with the responsible decisionmaker concerning’... the degree to which [the Government’s] interests should be promoted.” Ward, 491 U. S., at 800 (quoting United States v. Albertini, 472 U. S. 675, 689 (1985)); accord, Clark v. Community for Creative Non-Violence, 468 U. S. 288, 299 (1984) (“We do not believe... [that] United States v. O’Brien... endow[s] the judiciary with the competence to judge how much protection of park lands is wise”).
The dissent proceeds on the assumption that must-carry is designed solely to be (and can only be justified as) a measure to protect broadcasters from cable operators’ anticompetitive behavior. See post, at 251, 253, 258. Federal policy, however, has long favored preserving a multiplicity of broadcast outlets regardless of whether the conduct that threatens it is motivated by anticompetitive animus or rises to the level of an antitrust violation. See Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 714; United States v. Midwest Video Corp., supra, at 665 (plurality opinion) (FCC regulations “were... avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth”); National Broadcasting Co. v. United States, 319 U. S. 190, 223-224 (1943) (“ ‘While many of the network practices raise serious questions under the antitrust laws,... [i]t is not [the FCC’s] function to apply the antitrust laws as such’ ” (quoting FCC Report on Chain Broadcasting Regulations (1941))). Broadcast television is an important source of information to many Americans. Though it is but one of many means for communication, by tradition and use for decades now it has been an essential part of the national discourse on subjects across the whole broad spectrum of speech, thought, and expression. See Turner, supra, at 663; FCC v. National Citizens Comm. for Broadcasting, 436 U. S. 775, 783 (1978) (referring to studies “showing the dominant role of television stations... as sources of local news and other information”). Congress has an independent interest in preserving a multiplicity of broadcasters to ensure that all households have access to information and entertainment on an equal footing with those who subscribe to cable.
A
On our earlier review, we were constrained by the state of the record to assessing the importance of the Government’s asserted interests when “viewed in the abstract,” Turner, 512 U. S., at 663. The expanded record now permits us to consider whether the must-carry provisions were designed to address a real harm, and whether those provisions will alleviate it in a material way. Id., at 663-664. We turn first to the harm or risk which prompted Congress to act. The Government’s assertion that “the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry,” id., at 664-665, rests on two component propositions: First, “significant numbers of broadcast stations will be refused carriage on cable systems” absent must-carry, id., at 666. Second, “the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether.” Ibid.
In reviewing the constitutionality of a statute, “courts must accord substantial deference to the predictive judgments of Congress.” Id., at 665. Our sole obligation is “to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.” Id., at 666. As noted in the first appeal, substantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency. See id., at 666-667; id., at 670, n. 1 (Stevens, J., concurring in part and concurring in judgment). We owe Congress’ findings deference in part because the institution “is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon” legislative questions. Turner, supra, at 665-666 (plurality opinion) (quoting Walters v. National Assn, of Radiation Survivors, 473 U. S. 305, 331, n. 12 (1985)); Ward, supra, at 800; Rostker v. Goldberg, 453 U. S. 57, 83 (1981) (courts must perform “appropriately deferential examination of Congress’ evaluation of th[e] evidence”); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 103 (1973). This principle has special significance in cases, like this one, involving congressional judgments concerning regulatory schemes of inherent complexity and assessments about the likely interaction of industries undergoing rapid economic and technological change. Though different in degree, the deference to Congress is in one respect akin to deference owed to administrative agencies because of their expertise. See FCC v. National Citizens Comm. for Broadcasting, supra, at 814 (“[CJomplete factual support in the record for the [FCC’s] judgment or prediction is not possible or required; 'a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency’ ”); United States v. Midwest Video Corp., 406 U. S., at 674 (it was “beyond the competence of the Court of Appeals itself to assess the relative risks and benefits” of FCC policy, so long as that policy was based on findings supported by evidence). This is not the sum of the matter, however. We owe Congress’ findings an additional measure of deference out of respect for its authority to exercise the legislative power. Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.
1
We have no difficulty in finding a substantial basis to support Congress’ conclusion that a real threat justified enactment of the must-carry provisions. We examine first the evidence before Congress and then the further evidence presented to the District Court on remand to supplement the congressional determination.
As to the evidence before Congress, there was specific support for its conclusion that cable operators had considerable and growing market power over local video programming markets. Cable served at least 60 percent of American households in 1992, see Cable Act § 2(a)(3), and evidence indicated cable market penetration was projected to grow beyond 70 percent. See Cable TV Consumer Protection Act of 1991: Hearing on S. 12 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 102d Cong., 1st Sess., 259 (1991) (statement of Edward O. Fritts) (App. 1253); see also Defendants’ Joint Statement of Evidence Before Congress ¶ ¶ 9, 10 (JSCR) (App. 1252-1253). As Congress noted, § 2(a)(2), cable operators possess a local monopoly over cable households. Only one percent of communities are served by more than one cable system, JSCR ¶¶ 31-40 (App. 1262-1266). Even in communities with two or more cable systems, in the typical case each system has a local monopoly over its subscribers. See Comments of NAB before the FCC on MM Docket No. 85-349, ¶47 (Apr. 25, 1986) (App. 26). Cable operators thus exercise “control over most (if not all) of the television programming that is channeled into the subscriber’s home [and] can thus silence the voice of competing speakers with a mere flick of the switch.” Turner, 512 U. S., at 656.
Evidence indicated the structure of the cable industry would give cable operators increasing ability and incentive to drop local broadcast stations from their systems, or reposition them to a less-viewed channel. Horizontal concentration was increasing as a small number of multiple system operators (MSO’s) acquired large numbers of cable systems nationwide. § 2(a)(4). The trend was accelerating, giving the MSO’s increasing market power. In 1985, the 10 largest MSO’s controlled cable systems serving slightly less than 42 percent of all cable subscribers; by 1989, the figure was nearly 54 percent. JSCR ¶77 (App. 1282); Competitive Problems in the Cable Television Industry, Hearing before the Subcommittee on Antitrust, Monopolies and Business Rights of the Senate Committee on the Judiciary, 101st Cong., 1st Sess., 74 (1990) (Hearing on Competitive Problems in the Cable Television Industry) (statement of Gene Kim-melman and Dr. Mark N. Cooper).
Vertical integration in the industry also was increasing. As Congress was aware, many MSO’s owned or had affiliation agreements with cable programmers. § 2(a)(5); Senate Report, at 24-29. Evidence indicated that before 1984 cable operators had equity interests in 38 percent of cable programming networks. In the late 1980’s, 64 percent of new cable programmers were held in vertical ownership. JSCR ¶ 197 (App. 1332-1333). Congress concluded that “vertical integration gives cable operators the incentive and ability to favor their affiliated programming services,” § 2(a)(5); Senate Report, at 25, a conclusion that even Judge Williams’ dissent conceded to be reasonable. See 910 F. Supp., at 775. Extensive testimony indicated that cable operators would have an incentive to drop local broadcasters and to favor affiliated programmers. See, e. g., Competitive Issues in the Cable Television Industry: Hearing before the Subcommittee on Antitrust, Monopolies and Business Rights of the Senate Committee on the Judiciary, 100th Cong., 2d Sess., 546 (1988) (Hearing on Competitive Issues) (statement of Milton Maltz); Cable Television Regulation: Hearings on H. R. 1303 and H. R. 2546 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 102d Cong., 1st Sess., 869-870, 878-879 (1992) (Hearings on Cable Television Regulation) (statement of James B. Hedlund); id., at 752 (statement of Edward O. Fritts); id., at 699 (statement of Gene Kimmelman); Cable Television Regulation (Part 2): Hearings before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 2d Sess., 261 (1990) (Hearings on Cable Television Regulation (Part 2)) (statement of Robert G. Picard) (App. 1339-1341); see also JSCR ¶¶ 168-170, 278-280 (App. 1320-1321, 1370-1371).
Though the dissent criticizes our reliance on evidence provided to Congress by parties that are private appellees here, post, at 237-238, that argument displays a lack of regard for Congress’ factfinding function. It is the nature of the legislative process to consider the submissions of the parties most affected by legislation. Appellants, too, sent representatives before Congress to try to persuade them of their side of the debate. See, e. g., Hearing on Competitive Problems in the Cable Television Industry, at 228-241 (statement of James P. Mooney, president and CEO of appellant NCTA); Hearings on Cable Television Regulation, at 575-582 (statement of Decker S. Anstrom, executive vice president of appellant NCTA); Cable TV Consumer Protection Act of 1991: Hearing on S. 12 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 102d Cong., 1st Sess., 173-180 (1991) (statement of Ted Turner, president of appellant Turner Broadcasting System). After hearing years of testimony, and reviewing volumes of documentary evidence and studies offered by both sides, Congress concluded that the cable industry posed a threat to broadcast television. The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process. Even when the resulting regulation touches on First Amendment concerns, we must give considerable deference, in examining the evidence, to Congress’ findings and conclusions, including its findings and conclusions with respect to conflicting economic predictions. See supra, at 195-196. Furthermore, much of the testimony, though offered by interested parties, was supported by verifiable information and citation to independent sources. See, e. g., Hearings on Cable Television Regulation, at 869-870, 878-879 (statement of James B. Hedlund); id., at 705, 707-708, 712 (statement of Gene Kimmelman).
The reasonableness of Congress’ conclusion was borne out by the evidence on remand, which also reflected cable industry favoritism for integrated programmers. See, e. g., Record, Defendants’ Additional Evidence, Vol. VII.H, Exh. 170, p. 1749 (DAE) (cable industry memo stating: “All [of an MSO’s] systems must launch Starz [an integrated programmer] 2/94. Word from corporate: if you don’t have free channels... make one free”); Third Declaration of Tom Meek ¶ 44 (Third Meek Declaration) (App. 2071-2072); see also Declaration of Roger G. Noll ¶¶ 18-22 (Noll Declaration) (App. 1009-1013); Declaration of James Dertouzos ¶ 6a (Dertouzos Declaration) (App. 959).
In addition, evidence before Congress, supplemented on remand, indicated that cable systems would have incentives to drop local broadcasters in favor of other programmers less likely to compete with them for audience and advertisers. Independent local broadcasters tend to be the closest substitutes for cable programs, because their programming tends to be similar, see JSCR ¶¶269, 274, 276 (App. 1367, 1368-1370), and because both primarily target the same type of advertiser: those interested in cheaper (and more frequent) ad spots than are typically available on network affiliates. Second Declaration of Tom Meek ¶ 32 (Second Meek Declaration) (App. 1866); Reply Declaration of James N. Dertouzos ¶ 26 (App. 2023); Carriage of Television Broadcast Signals by Cable Television Systems, Reply Comment of the Staff of the Bureau of Economics and the San Francisco Regional Office of the Federal Trade Commission, p. 19 (Nov. 26, 1991) (Reply Comment of FTC) (App. 176). The ability of broadcast stations to compete for advertising is greatly increased by cable carriage, which increases viewership substantially. See Second Meek Declaration ¶ 34 (App. 1866-1867). With expanded viewership, broadcast presents a more competitive medium for television advertising. Empirical studies indicate that cable-carried broadcasters so enhance competition for advertising that even modest increases in the numbers of broadcast stations carried on cable are correlated with sig-. nificant decreases in advertising revenue to cable systems. Dertouzos Declaration ¶¶20, 25-28 (App. 966, 969-971); see also Reply Comment of FTC, at 18 (App. 175). Empirical evidence also indicates that demand for premium cable services (such as pay-per-view) is reduced when a cable system carries more independent broadcasters. Hearing on Competitive Problems in the Cable Television Industry, at 323 (statement of Michael 0. Wirth). Thus, operators stand to benefit by dropping broadcast stations. Dertouzos Declaration ¶ 6b (App. 959).
Cable systems also have more systemic reasons for seeking to disadvantage broadcast stations: Simply stated, cable has little interest in assisting, through carriage, a competing medium of communication. As one cable-industry executive put it, “ ‘our job is to promote cable television, not broadcast television.”’ Hearing on Competitive Issues, at 658 (quoting Multichannel News, Channel Realignments: United Cable Eyes Plan to Bump Network Affils to Upper Channels, Nov. 3, 1986, p. 39); see also Hearing on Competitive Issues, at 661 (“ ‘Shouldn’t we give more... shelf space to cable? Why have people trained to view UHF?’ ”) (vice president of operations at Comcast, an MSO, quoted in Multichannel News, Cable Operators begin to Shuffle Channel Lineups, Sept. 8, 1986, p. 38). The incentive to subscribe to cable is lower in markets with many over-the-air viewing options. See JSCR ¶275 (App. 1369); Dertouzos Declaration ¶¶27, 32 (App. 970, 972). Evidence adduced on remand indicated cable systems have
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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sc_lcdisposition
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
BROCK, SECRETARY OF LABOR v. PIERCE COUNTY
No. 85-385.
Argued April 1, 1986
Decided May 19, 1986
Marshall, J., delivered the opinion for a unanimous Court.
Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Geller, Allen H. Feldman, Mary-Helen Mautner, and Steven J. Mandel.
Joseph F. Quinn argued the cause for respondent. With him on the brief was William H. Griffies.
Briefs of amici curiae urging affirmance were filed for the St. Regis Mohawk Tribe by Jeanne S. Whiteing; for the county of Oakland by Charles G. Preston; for the city of Detroit by David H. Fink and Martin A. Scott; for the city of Chicago by James D. Montgomery, Mary K. Rochford, and Maureen Jeannette Kelly; and for the National Association of Counties et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and James L. Feldesman.
Justice Marshall
delivered the opinion of the Court.
Section 106(b) of the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U. S. C. § 816(b) (1976 ed., Supp. V), provides that the Secretary of Labor (Secretary) “shall” issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse. The question presented in this case is whether the Secretary loses the power to recover misused CETA funds after that 120-day period has expired.
I
Before its repeal in 1982, CETA provided for grants of federal funds to certain qualified entities known as “prime sponsors,” principally state and local governments, for programs “providing] job training and employment opportunities for economically disadvantaged, unemployed, or underemployed persons,” 29 U. S. C. §801 (1976 ed., Supp. V). The statute contains detailed requirements concerning the operation of a CETA program and the training, pay, and terms of employment of participants in a program, see § § 823-827. A prime sponsor must submit to the Secretary a plan detailing the operation of the proposed program and containing assurances that the program will comply with the statute and with the Secretary’s regulations, § 813.
CETA grants the Secretary broad authority to ensure that CETA funds are used in accordance with the statute and regulations. The Secretary may audit a grant recipient, and in connection with such an audit may inspect records, question employees, and enter any premises upon which the program is conducted. § 835(a)(2). Any interested person, such as a participating employee, may file a complaint with the Secretary alleging that a grant recipient is failing to comply with the applicable standards. § 816.
Section 106(b), 29 U. S. C. § 816(b), which is the provision at issue in this lawsuit, requires that whenever the Secretary has reason to believe, through a complaint, an audit, or otherwise, that any grant recipient is misusing CETA funds or violating any statutory or regulatory standards, the Secretary “shall investigate the matter.” The same section goes on to require that the Secretary “shall” determine “the truth of the allegation or belief involved, not later than 120 days after receiving the complaint.”
II
Respondent is a county in the State of Washington that received CETA funds from 1974 through 1977 pursuant to two separate grants. On September 19, 1978, the Labor Department’s Office of Special Investigations filed an audit report concerning respondent’s first grant. That Department’s Grant Officer issued a final determination on February 13, 1981, disallowing approximately $110,000 in costs incurred by respondent on the grounds that those costs related to employees who were not eligible to participate in a CETA program. On December 11, 1978, the Department’s Office of the Inspector General filed an audit report with respect to the second grant, again raising questions concerning ineligible participants. On April 22, 1981, the Grant Officer issued a final determination which he corrected on May 22, 1981, finally disallowing $373,000 in costs arising out of the second grant.
Respondent sought review of both final determinations before an Administrative Law Judge (ALJ) of the Labor Department. The ALJ disallowed the smaller sums of $108,000 and $265,000, respectively, in the two cases. In both cases, respondent argued that the Secretary could not order respondent to repay these sums because the Grant Officer’s final determination had been issued considerably more than 120 days after submission of the initial audit report. While conceding that the Secretary did not lose jurisdiction to make a determination after 120 days had passed, respondent argued that it had suffered prejudice because of the lengthy delay. The ALJ rejected this claim in both cases, finding no specific instances of prejudice.
The Court of Appeals for the Ninth Circuit reversed. Pierce County v. United States, By and Through Dept. of Labor, 759 F. 2d 1398 (1985). That court had previously decided, in City of Edmonds v. United States Dept. of Labor, 749 F. 2d 1419 (1985), that Congress, in enacting § 106(b), had intended to prevent the Secretary from acting on a complaint unless the Secretary’s final determination was issued within 120 days from his receipt of the complaint. In the present case, the Court of Appeals decided that the statutory command to the Secretary to issue a final determination “not later than 120 days after receiving the complaint” also required the Secretary to make a determination within 120 days when the allegation or belief is a result of the Secretary’s own audit rather than a third-party complaint. This decision conflicts with decisions of the Second, Seventh, and Eighth Circuits. We granted certiorari to resolve the conflict, 474 U. S. 944 (1985), and we now reverse.
Ill
As Judge Friendly noted in a case raising the identical issue, the proposition that Congress intended the Secretary to lose the authority to recover misspent funds 120 days after learning of the misuse “is not, to say the least, of the sort that commands instant assent.” St. Regis Mohawk Tribe, New York v. Brock, 769 F. 2d 37, 41 (CA2 1985) (footnote omitted), cert, pending, No. 85-949. We must therefore examine carefully the statutory language and legislative history to determine whether Congress did indeed desire this somewhat incongruous result.
A
The Ninth Circuit held that the plain meaning of the statutory command that the Secretary “shall” take action within 120 days was sufficient to demonstrate that Congress meant to bar further action after that period had expired. City of Edmonds, 749 F. 2d, at 1421. Noting that “[statutory language is generally construed according to the plain meaning of the words used by Congress ‘absent a clearly expressed legislative intention to the contrary/” ibid, (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980)), and finding no such contrary legislative intent, the Ninth Circuit held that the 120-day limit was jurisdictional.
The Secretary, however, notes that while § 106(b) speaks in mandatory language, it nowhere specifies the consequences of a failure to make a final determination within 120 days. The Secretary relies on a line of precedent in the Courts of Appeals to the effect that Government agencies do not lose jurisdiction for failure to comply with statutory time limits unless the statute “‘both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.’” St. Regis Mohawk Tribe, supra, at 41 (quoting Fort Worth National Corp. v. Federal Savings & Loan Ins. Corp., 469 F. 2d 47, 58 (CA5 1972)). Having specified no consequences for the failure to make the determination required by § 106(b) within 120 days, the Secretary argues, the courts should not impute to Congress the desire to remedy such a failure by preventing the Secretary from protecting both the public fisc and the integrity of a Government program.
This Court has never expressly adopted the Circuit precedent upon which the Secretary relies. However, our decisions supply at least the underpinnings of those precedents. This Court has frequently articulated the “great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.” United States v. Nashville, C. & St. L. R. Co., 118 U. S. 120, 125 (1886). See also Guaranty Trust Co. v. United States, 304 U. S. 126 (1938); Stanley v. Schwalby, 147 U. S. 508, 515 (1893). We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.
The Ninth Circuit rejected the Fort Worth National line of precedent as being inconsistent with this Court’s decision in Mohasco Corp. v. Silver, 447 U. S. 807 (1980). In Mohasco, we held that an action filed by a private plaintiff after the expiration of the 300-day time period provided in § 706(e) of the Civil Rights Act of 1964, 42 U. S. C. §2000e-5(e), was jurisdictionally barred. In so holding, we gave controlling weight to the literal meaning of the statutory provisions, which stated that “a charge under this section shall be filed” within the specified time limits. See 447 U. S., at 815-817. However, there are two clear differences between the present case and Mohasco. First, legislatures routinely create statutes of limitations for the. filing of complaints, and Congress’ intention to create a statute of limitations in § 706(e) was certainly unexceptional. Indeed, the plaintiff in Mohasco nowhere alleged that § 706(e) was not a statute of limitations, but rather contended that the word “filed” should be defined in a way that would render his action timely. 447 U. S., at 818. Section 106(b), by contrast, does not merely command the Secretary to file a complaint within a specified time, but requires him to resolve the entire dispute within that time. This is a more substantial task than filing a complaint, and the Secretary’s ability to complete it within 120 days is subject to factors beyond his control. There is less reason, therefore, to believe that Congress intended such drastic consequences to follow from the Secretary’s failure to meet the 120-day deadline. Second, Mohasco involved a private right of action, and the plaintiff’s failure to file a complaint prejudiced only that plaintiff. In the present case, by contrast, public rights are at stake, and the Secretary’s delay, under respondent’s theory, would prejudice the rights of the taxpaying public.
Respondent suggests that statutes setting deadlines for agency action should be interpreted to permit the agency to proceed after the deadline has expired only when agency inaction would prejudice a private citizen seeking some sort of redress. When, as in this case, agency inaction will injure only the Federal Treasury, courts should read a command like that of § 106(b) as a statute of limitations or jurisdictional bar. We disagree with this argument for two reasons. First, the protection of the public fisc is a matter that is of interest to every citizen, and we have no evidence that Congress wanted to permit the Secretary’s inaction to harm that interest any more than it would permit such inaction to injure an individual claimant. Second, the 120-day deadline clearly applies to investigations triggered by private complaints alleging that the individual complainant, perhaps a program participant or subcontractor, has been injured by a grant recipient’s failure to comply with CETA’s requirements. Indeed, the federal courts have uniformly held that the statutory complaint mechanism is the sole means of redress for a private party injured by a grant recipient’s violation of CETA. Thus, even under respondent’s theory, § 106(b) cannot be jurisdictional, because it would then permit the Secretary’s inaction to prejudice individual complainants seeking to enforce their rights under CETA. We hold, therefore, that the mere use of the word “shall” in § 106(b), standing alone, is not enough to remove the Secretary’s power to act after 120 days.
B
Looking to other sources of congressional intent, we have found nothing in the history of the 1978 amendments to CETA, which added the 120-day deadline, to suggest that Congress intended to impose a jurisdictional limitation on agency action. The only explicit discussion of the jurisdictional effect of the 120-day provision was a brief colloquy on the House floor between Representative Hawkins, one of the bill’s sponsors, and Representative Obey, who offered the amendment that added the 120-day deadline:
“Mr. HAWKINS. Mr. Chairman, we have seen the amendment. We accept the amendment.
“If the gentleman would further yield, do I understand . . . that if the determination is not made in a specified time it shall not affect the Secretary’s jurisdiction in the matter?
“Mr. OBEY. That is correct.
“Mr. HAWKINS. With that understanding we do accept the amendment.” 124 Cong. Rec. 25230-25231 (1978).
Such statements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress’ intent. Grove City College v. Bell, 465 U. S. 555, 567 (1984). In this case, the legislative history fully supports Representative Hawkins’ interpretation of § 106(b).
One of the principal concerns underlying the 1978 amendments was the growing incidence of fraud and misuse of CETA funds by state and local governments. See H. R. Rep. No. 95-1124, pp. 3, 5, 13 (1978) (noting “widespread concern that there has been substantial fraud and abuse in the CETA program and insufficient staff devoted to monitoring and supervising the program”); S. Rep. No. 95-891, pp. 42-44 (1978). A primary purpose of the amendments was to strengthen the Secretary’s hand in dealing with illegal practices. Thus the amendments contained numerous anti-fraud measures, including a provision for criminal sanctions, 18 U. S. C. § 665(a) (1976 ed., Supp. V), bonding requirements for grant recipients, 29 U. S. C. § 836, and authorization for the Secretary to terminate or suspend funding or to take other corrective measures, §816. In a separate bill, Congress created an Office of the Inspector General in the Labor Department. See Inspector General Act of 1978, Pub. L. 95-452, 92 Stat. 1101 (now codified as amended at 5 U. S. C. App. §§ 1-12. The Conference Report for the 1978 CETA amendments made it clear that Congress expected the Secretary “to provide, within the new Office of Inspector General, for a unit whose sole responsibility will be that of monitoring the CETA program.” H. R. Conf. Rep. No. 95-1765, p. 123 (1978).
Congress was particularly concerned about the ability of program participants such as contractors, subgrantees, and employees to voice grievances and receive a prompt resolution. See St. Regis Mohawk Tribe, New York v. Brock, 769 F. 2d, at 43 (citing House and Senate hearings on 1978 amendments). The Senate noted that “[i]n some cases grievances have been either ignored, or there has been interminable delay in their resolution.” S. Rep. No. 95-891, supra, at 42. In response to this problem, Congress required, in § 106(a), that each prime sponsor establish a grievance procedure that would provide for hearings and require a decision within 60 days after the filing of the grievance. After exhausting the prime sponsor’s grievance machinery, an interested party could, pursuant to § 106(b), file a complaint with the Secretary. The legislative history makes it clear that Congress intended the 120-day deadline of § 106(b) to assure program participants the opportunity for a prompt resolution of grievances. Senate Report No. 95-891, supra, at 16, for example, states: “A party who wishes to appeal to the Secretary either the formal or the informal decision of the prime sponsor has the right to a due process hearing and a determination on the merits of the case within 120 days.” Conspicuously absent is any reference to the possibility that the 120-day provision might convey rights upon the prime sponsor.
There is no indication in the legislative history that Congress was concerned that the Secretary was treating prime sponsors too harshly; to the contrary, the House and Senate Reports consistently voice Congress’ belief that the Secretary had not been aggressive enough in discovering and rectifying abuses. The 120-day provision was clearly intended to spur the Secretary to action, not to limit the scope of his authority. Congress intended that “the Secretary should have maximum authority to protect the integrity of the program.” S. Rep. No. 95-891, supra, at 21. It would be very odd if Congress had implemented that intent by cutting off the Secretary’s authority to correct abuses just 120 days after learning of them.
C
Respondent provides additional arguments, which we find unpersuasive, in support of the Ninth Circuit’s decision. Respondent contends that even if the statute does not establish a jurisdictional bar to the Secretary’s recovery of funds, the Secretary’s own regulations do so. The Secretary’s regulations, however, merely provide a timetable for the resolution of complaints and audits. See n. 3, supra. While they arguably go beyond the statute in applying the 120-day limit to investigations triggered by audits as well as those triggered by complaints, they do not specify any consequences of a failure to meet that deadline in the event of either an audit or a complaint. Thus, even if it were possible for the Secretary to create a jurisdictional limitation not contained in the statute, the language of the regulations cannot support respondent’s contention that the 120-day provision is jurisdictional with respect to audits.
Respondent urges, if we do not find § 106(b) to affect the Secretary’s jurisdiction, that we treat it like a statute of limitations that can vary depending on the complexity of the dispute or the culpability of the grant recipient. There is simply no authority in the statute or legislative history for the courts to create such a remedy. The balancing of interests that respondent proposes is a task for Congress.
IV
We hold that CETA’s requirement that the Secretary “shall” take action within 120 days does not, standing alone, divest the Secretary of jurisdiction to act after that time. There is simply no indication in the statute or its legislative history that Congress intended to remove the Secretary’s enforcement powers if he fails to issue a final determination on a complaint or audit within 120 days. Accordingly, the judgment of the Court of Appeals is
Reversed.
Effective October 13, 1982, CETA was replaced by the Job Training Partnership Act, Pub. L. 97-300, 96 Stat. 1324 (now codified at 29 U. S. C. § 1501 et seq. (1982 ed., and Supp. II)).
Hereafter all citations to Title 29 of the United States Code will be to Supplement V of the 1976 edition, unless otherwise specified.
The Secretary has promulgated regulations implementing § 106(b). See 20 CFR §§ 676.86, 676.88 (1982). Those regulations provide that a Labor Department Grant Officer shall receive the complaint or audit report and conduct the investigation. §§ 676.86(c), (d), (e). The Grant Officer then makes an initial determination of the truth of the allegation or belief, § 676.88(a). The Grant Officer must provide the recipient with an opportunity to resolve informally the matters contained in the initial determination, § 676.88(d), and if such informal resolution fails, the Grant Officer issues a final determination, § 676.88(e).
The regulations provide that the Grant Officer’s final determination shall be the “final determination” required of the Secretary by § 106(b), even though that determination is subject to further review by an administrative law judge and the Secretary. § 676.86(a). Respondent does not contest the Secretary’s interpretation of § 106(b)’s “final determination” requirement. In the present case both the Grant Officer’s final determination and the Secretary’s final action took place after the 120-day deadline had expired.
Because § 106(b) states that the deadline for the Secretary’s final determination is “120 days after receiving the complaint,” the Secretary argued before the Ninth Circuit that the deadline applies only to investigations triggered by third-party complaints, and not those triggered by the Secretary’s own audit. This reading, in the Secretary’s view, also comports with the statutory purpose of protecting program participants and other interested parties who may be injured by a prime sponsor’s misuse of funds. The Ninth Circuit rejected this argument, in part because the Secretary’s own regulations establish a 120-day deadline for issuing determinations after an internal audit, see 20 CFR § 676.88(e) (1982). While the Secretary contends that those regulations simply constitute a self-imposed deadline, he does not challenge this aspect of the Ninth Circuit’s decision. We therefore assume without deciding that the 120-day deadline was intended to apply to audit investigations.
St. Regis Mohawk Tribe, New York v. Brock, 769 F. 2d 37 (CA2 1985), cert. pending, No. 85-949; Milwaukee County v. Donovan, 771 F. 2d 983 (CA7 1985), cert. pending, No. 85-1109; City of St. Louis v. United States Dept. of Labor, 787 F. 2d 342 (CA8 1986); but see Lehigh Valley Manpower Program v. Donovan, 718 F. 2d 99 (CA3 1983) (failure to comply with 120-day provision bars recovery of misspent funds).
See also National Cable Television Assn., Inc. v. Copyright Royalty Tribunal, 233 U. S. App. D. C. 44, 57, n. 23, 724 F. 2d 176, 189, n. 23 (1983) (requirement in 17 U. S. C. § 804(e) that tribunal “shall” render decision within one year does not make later decision void); Marshall v. N. L. Industries, Inc., 618 F. 2d 1220, 1224-1225 (CA7 1980) (failure to meet requirement in 29 U. S. C. § 660(e)(3) that Secretary of Labor “shall” make determination on employee’s complaint within 90 days does not bar subsequent enforcement action); Marshall v. Local Union 1374, Int’l Assn. of Machinists and Aerospace Workers, AFL-CIO, 558 F. 2d 1354 (CA9 1977) (requirement of 29 U. S. C. § 482(b) that Secretary of Labor “shall” bring suit within 60 days of receiving complaint does not bar later suit).
The Administrative Procedure Act (APA), 5 U. S. C. §§701-706, entitles any person “adversely affected or aggrieved by agency action” to judicial review, § 702, unless the relevant statute precludes judicial review or “agency action is committed to agency discretion by law,” § 701(a)(2). Clearly the statutory command that the Secretary “shall” act within 120 days does not commit such action to the Secretary’s discretion. Moreover, nothing in CETA appears to bar an action to enforce the 120-day deadline. Cf. CETA Workers Organizing Comm. v. City of New York, 617 F. 2d 926, 934-936 (CA2 1980) (APA may not be used to circumvent § 106(b) complaint mechanism). Thus, it would appear that a complainant adversely affected by the Secretary’s failure to act on a complaint could bring an action in the district court. The court would have the authority to “compel agency action unlawfully withheld or unreasonably delayed,” § 706(1). If respondent is correct in arguing that Congress, in enacting § 106(b), intended to protect grant recipients from lengthy delays in audits, grant recipients such as respondent would be within the zone of interests protected by § 106(b), and would therefore have standing to bring an action under the APA to the same extent as a complainant. Cf. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). On the other hand, were § 106(b) intended only to protect complainants, there would be no need to provide grant recipients with any remedy at all — much less the drastic remedy respondent seeks in this case — for the Secretary’s failure to meet the 120-day deadline.
See Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v. City of New York, 676 F. 2d 20 (CA2 1982); Kolman v. Milwaukee Area Technical College, 548 F. Supp. 684 (ED Wis. 1982).
We need not, and do not, hold that a statutory deadline for agency action can never bar later action unless that consequence is stated explicitly in the statute. In this case, we need not go beyond the normal indicia of congressional intent to conclude that §. 106(b) permits the Secretary to recover misspent funds after the 120-day deadline has expired.
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_appnatpr
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
BEWAL, INC., a corporation of Kansas; and Benjamine C. Edwards, Jr., Appellants, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a corporation of Delaware, Appellee.
No. 6445.
United States Court of Appeals Tenth Circuit.
June 7, 1961.
Rehearing Denied July 26, 1961.
Wayne Coulson, Wichita, Kan. (Lloyd F. Cooper, John H. Widdowson, and Richard A. Loyd, Wichita, Kan., on the brief), for appellants.
Edward A. Haight, Chicago, 111. {George B. Powers and Malcolm Miller, Wichita, Kan., and Harold J. Kinney and Stanley G. DeLaHunt, St. Paul, Minn., on the brief), for appellee.
Before PICKETT, LEWIS and BREI-TENSTEIN, Circuit Judges.
PICKETT, Circuit Judge.
Minnesota Mining and Manufacturing Company, a Delaware corporation, brought this action alleging that its patent No. 2,714,066 had been infringed by the defendants, Bewal, Inc., which was sales agent for Polychrome Corporation, the manufacturer of the accused product, and Benjamine C. Edwards, Jr., who was president of Bewal, Inc. The defense included a denial of both the validity of the patent and the infringement. The trial court found that the patent is valid and had been infringed. The defendants were enjoined from further infringement, and the matter was referred to a master for a determination of damages.
The patent relates to a presensitized lithographic plate used in printing. Lithography is a process of printing from a plane surface without raised type or engraved images. To accomplish the desired results, the plates are required to have a printing image which repels water and retains greasy ink, and a non-image surface which retains water. The process employs the principle that oil and water do not mix. The effective use of the plate depends upon its ability to attract ink only on the image area. Customarily, the plate is mounted on a cylinder in a press, and, as it revolves, the plate is dampened with water, and the image area is supplied with the required ink, which is repelled by the damp, non-image surface. The plate is then pressed against the rubber surface of an offset cylinder which removes the ink and transfers it to the paper.
The patent in suit describes the invention as being:
“especially concerned with a plate formed from a thin metal sheet having at least one surface thereof treated to provide a tightly bonded, thin, preferably inorganic, hydrophilic surface treatment, formed from a solution of an alkali metal silicate, silicic acid, or other treating agent which will form a permanently hydrophilic scum-preventing and tone-reducing film overlying and in firmly-bonded contact with the surface of the plate, and having a coating of light-sensitive organic material such as a light-sensitive diazo resin or other light-sensitive organic nitrogen-containing material over the exposed hydrophilic treated surface, i. e., over the exposed surface of the scum-preventing and tone-reducing film or treatment. The light-sensitive material is preferably a water-soluble, rapidly light-insolubized organic compound, especially a diazo type of light-sensitive material, as more fully described below.”
The principal purpose of the invention is to provide presensitized planographic plates with dimensional stability which are ready for exposure through a negative or stencil, without further treatment, even after storage for a substantial length of time. Jewett and Case sought to create a plate free of the disadvantages of those generally in use, particularly the necessity of exposure and development immediately after the application of the sensitizer. They discovered that when a diazo resin was used as a sensitizer on a sheet of aluminum the metal and diazo reacted with each other, causing a rapid deterioration. They found the answer to this by-treating a clean, smooth aluminum sheet with a solution of aqueous sodium silicate which provided a water-retaining surface, or thin film, on the aluminum sheet, and shielded the layer of diazo light-sensitive material from the aluminum. This treatment eliminated the deteriorating effect of reaction with the aluminum during storage. The key to the success of the process was in the protective film on the metal sheet resulting from the silicate treatment. The discovery of the patentees was not the recognition that such film was desirable, but what film would do the job. Application of Jewett [& Case] 247 F.2d 953, 45 CCPA 714. These plates could be prepared for the press by a lithographer in far less time than the old ones, and less training was required for those using them. A better quality of printing resulted from the smooth plate. The plates were unique in the industry, and had immediate commercial success.
The defendants agree that there was no presensitized lithographic plate in the prior art which anticipated the one described in the plaintiff’s patent, but urge that every process used therein was well-known, and that the process described by the patent was only an aggregation of the known processes which were obvious to a person having ordinary skill in the art. The trial court, as did the Patent Office, considered the principal patents and the literature relied upon by the defendants, and found that none of the prior art had anticipated the invention of the patent in suit, and that the Patent Office had overlooked no material matter in the prior art and publications. It is quite clear from the evidence that the printing industry had for many years sought a presensitized lithographic plate which would retain stable dimensions, provide a good press life, and could be stored without deterioration, and that these requirements were first met by the Jewett and Case plate.
A duly issued patent is presumed to be valid, and the burden of establishing invalidity rests on the party asserting it. 35 U.S.C.A. § 282. The presumption, which includes the implication that the patent was not anticipated by prior knowledge and use, may be overcome only by clear and convincing evidence. Jamco, Inc. v. Carlson, 10 Cir., 274 F.2d 338; Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811; Oliver United Filters, Inc. v. Silver, 10 Cir., 206 F.2d 658, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416; Insul-Wool Insulation Corp. v. Home Insulation, Inc., 10 Cir., 176 F.2d 502. The presumption of validity is strengthened in cases in which the developments relied upon to show invalidity because of anticipation were before the Patent Office. Saul v. International Harvester Co., 7 Cir., 276 F.2d 361; Cold Metal Process Co. v. Republic Steel Corp., 6 Cir., 233 F.2d 828, certiorari denied 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86.
When old elements are united in such a manner that the union accomplishes either a new result or an old result in a more facile, economical and efficient way in a particular environment which presented peculiar and difficult problems, it is a true combination and patentable. Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., supra, 260 F.2d at page 816; Oliver United Filters, Inc. v. Silver, supra. Cf. Hutchinson Mfg. Co. v. Mayrath, 10 Cir., 192 F.2d 110, certiorari denied 343 U.S. 914, 72 S.Ct. 647, 96 L.Ed. 1329. In Oliver United Filters, Inc. v. Silver, supra, a patent was issued on a combination of parts and developments, all well known to the industry, but the result was one which the manufacturers of beet sugar had unsuccessfully sought for many years. The defense of invalidity was similar to that presented in the instant case. In discussing the applicable law, we said, 206 F.2d at page 662:
“Silver does not contend that he originated any one of the elemental parts or steps of his inventions. He urges, and the patent office agreed, that he was the first to conceive of the use of the combination which is employed in his apparatus and process, and that his invention is in the combination and not in the elements. He readily concedes that all the elements of his combination were known to the art long prior to his inventions but contends that his combination is new. The law is that a combination of old elements is patentable if it accomplishes either a new or an old result, ‘in a more facile, economical, and efficient way in a particular environment which presented peculiar and difficult problems.’ Harris v. National Machine Works, Inc., 10 Cir., 171 F.2d 85, 88, certiorari denied 336 U.S. 905, 69 S.Ct. 491, 93 L.Ed. 1070; Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 332, 29 S. Ct. 503, 53 L.Ed. 816; Williams v. Hughes Tool Co., 10 Cir., 186 F.2d 278, 281, certiorari denied 341 U.S. 903, 71 S.Ct. 612, 95 L.Ed. 1342; Haynes Stellite Co. v. Osage Metal Co., Inc., 10 Cir., 110 F.2d 11, 15; Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 506, 512. In Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162, it was said that, ‘The function of a patent is to add to the sum of useful knowledge’, and that to constitute invention, ‘The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds e sum of its parts is the accumulation of old devices patentable.’ * But see, 1 Deller, Walker on Patents (Deller’s Ed., Supp.1960.)
While it is true that Jewett and Case brought together known processes which, viewed in retrospect, appeared to be very simple, yet the methods attempted in the prior art did not lead to a metal presensitized plate even though a need and a ready market therefor had long existed. It was not until after the plaintiff’s plate had been marketed that the invention became obvious even to the leaders in the industry who had attempted to find an answer to the demands. “The fact that others skilled in the art in quest for a solution of the problem failed and that [patentee] first conceived the combination of elements, arrangements and mode of operation embodied in the patent in suit is persuasive evidence that he exercised inventive genuis and not mere mechanical skill.” Steiner Sales Co. v. Schwartz Sales Co., 10 Cir., 98 F.2d 999, 1003, certiorari denied 305 U.S. 662, 59 S.Ct. 364, 83 L.Ed. 430; Accord, Stearns-Roger Mfg. Co. v. Ruth, 10 Cir., 62 F.2d 442.
The evidence is without substantial conflict that plaintiff’s invention, as set forth in the claims of the patent, accomplished a new and improved result in a more facile, economical and efficient manner, and solved a peculiar and difficult problem in a particular environment. It made an important contribution to the sum of useful knowledge concerning lithographic plates which was definite and novel, and was not such that at the time it would have been obvious to a person having ordinary skill in the art of lithography.
The trial court found that each of the claims of the patent in suit was infringed by the accused “dualkote” and “alkote” presensitized plates manufactured by Polychrome Corporation and sold by the defendants. The patent claims refer to a film formed on the surface of an aluminum sheet through the reaction of an aqueous solution of soluble silicate which is “substantially free from water-soluble material.” Defendants urge that the Polychrome plate is distinguishable from that of the plaintiffs in that, after the silicate treatment, the surface of the aluminum sheet is not substantially free from water-soluble material. Although there is evidence to the effect that the accused plate, before the application of the light-sensitive diazo resin, is not free from water-soluble material, the difference in the amount of such material on the two plates is so insignificant that it cannot be considered as being without the teaching of the patent. The defendants cannot avoid the provisions of the patent by adding water-soluble materials unless, of course, the added materials create a result wholly different from those of the patent.
The evidence is without con flict that plaintiff’s plate and the ac cused plate are almost indistinguish able.
The court found:
“They employ substantially the same means, are used in substantially the same manner, and produce substantially identical results. Their surface is smooth, as defined in the patent, and very different from the surface of the various prior art mechanically grained and deeply etched plates. The silicate surface of the accused plates is substantially free of water soluble materials, within the meaning of the patent and the claims thereof.”
Colorable differences without substance do not avoid infringement. Southwestern Tool Co. v. Hughes Tool Co., 10 Cir., 98 F.2d 42; Skinner Bros. Belting Co. v. Oil Well Improvements Co., 10 Cir., 54 F.2d 896. The test of infringement is “whether the two devices do the same work in substantially the same way to accomplish substantially the same result.” Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 503. Accord, Jamco, Inc. v. Carlson, supra; Oliver United Filters, Inc. v. Silver, supra. All the witnesses agree that the accused plates do the same work as plaintiff’s plates, and accomplish almost exactly the same result. The infringement is clear.
The defendant Edwards was a majority stockholder, president, and general manager of the defendant Bewal, Inc., which was incorporated in 1952 to perform a contract with plaintiff for the distribution of its plates in a specific area. While Bewal, Inc. was still employed as the distributor for plaintiff’s product, he arranged with Polychrome to sell its presensitized plates as an exclusive dealer in the same territory. With the cooperation of Polychrome, he sought to direct customers and users of plaintiff’s plates to those of Polychrome. During this time he wrote to Polychrome stating, “Minnesota Mining is having a ‘fit’ ”, and “so far, we are making monkeys of them. * * #» “Whoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C.A. § 271(b). Corporate officers are not liable for patent infringement where they have not been active other than as such officers, but if they wilfully and knowingly participate in, induce and approve acts of infringement, they are liable with the corporation for the wrongful acts. Southwestern Tool Co. v. Hughes Tool Co., supra; 3 Deller, Walker on Patents § 442 (Deller’s Ed., 1937). The finding that Edwards, by his conduct, “aided, participated in, approved, ratified and induced the sale and distribution by Bewal of the Polychrome presensitized metal lithographic plates” is not clearly erroneous.
Finally it is contended that there was fraudulent conduct in the prosecution of the application in the Patent Office and that plaintiff’s conduct during the trial of this ease was such that equitable relief should be denied. It is urged that the information leading to the patent process was furnished to the patentees by third parties, Lithoplate, Inc., and Elmer Deal, its president. The argument is that plaintiff received from Lithoplate, Inc. each element needed to complete the plate finally described in the patent; that it was Jewett’s purpose to copy Lithoplate, Inc.’s combination and substitute some other intermediate protective layer for the recommended cellulose acetate; and that all that was necessary for this change was to turn to the prior art to find that sodium silicate, which had been suggested by Deal in a meeting at St. Paul, Minnesota, would serve the purpose. In unrestrained language, defendants refer to some of the representations made in the Patent Office as “bare face falsehoods” ; they state that plaintiffs “stole” the formula from Lithoplate; and refer to “Jewett’s perjury” in efforts to conceal the source of his knowledge.
The trial court found, “Jewett and Case are the first, original and joint inventors of the invention defined in the claims of the patent in suit. They did not derive the invention from either Lithoplate, Inc., Deal, Richlin, or anyone else.” This finding is sustained by the evidence. Lithoplate, Inc. was engaged in the manufacture of lithographic plates and was desirous of developing a marketable presensitized plate. There were negotiations and discussions between plaintiff and Deal, representing Lithoplate, together with its chief technical advisor Richlin, from November of 1949 to March or early April of 1950. These discussions, along with some experiments, were primarily directed toward the development of a plate with a cellulose acetate film, laminated to metal, having an exposed surface of the acetate hydrolized, and coated with a diazo light-sensitive resin. It was thought that the film of cellulose acetate might be successful on an etched metal plate. The possibility of sensitizing the surface of a plastic film, and then laminating it to a metal or paper backing was also discussed. These discussions and negotiations bore no fruit and were terminated by a letter from the vice-president of plaintiff on April 10, 1950. The ideas considered by the parties were old, and Lithoplate did not claim to be the inventor of any of them. A disclosure to the Patent Office of these negotiations would have added little, if anything, to the material which it had. The patent refers to prior use of a cellulose acetate layer on the metal to protect the sensitizer.
The plaintiff was convinced that a formula or treatment of metal could be found which would protect the light-sensitive diazo compound from the deteriorating effect of the metal. It therefore decided to continue the study. Within a short time thereafter, Jewett and Case, while making routine experiments, found that treatment of a clean aluminum sheet in a solution of sodium silicate brought about the desired result. The plates suggested by Lithoplate were never manufactured or sold by the plaintiff. Lithoplate, Inc. continued its efforts, and during the year 1950, manufactured and sold a laminated cellulose acetate lithographic plate which proved to be unsuccessful and was discontinued in 1952. It then began to make and market a silicate treated presensitized aluminum plate. Deal testified that during the period of his discussions, experiments and negotiations with plaintiff, he disclosed, at a meeting in St. Paul, Minnesota, that the treatment of an aluminum sheet with a silicate solution might be the answer to the problem. There is no documentary corroboration of this disclosure. The memorandum of the meeting where the information was said to have been given does not mention it. The testimony is contradicted by several witnesses whom the trial court saw fit to believe. Furthermore, the so-called “steal from Deal” is an issue which cannot be determined in this action. The file history of the Jewett and Case patent contains this statement:
“However, insofar as we are aware, no one has ever previously produced any commercially acceptable presensitized metal-backed planographic plate; and no one has ever previously produced any presensitized planographic plate of any construction which will compete with grained zinc plates of the prior art, as above described, where long press life and quality reproductions are important. Our plate, on the other hand, is a presensitized metal plate, and yet will produce work with a sharpness of dots and lines, and other details, considerably beyond what can be produced with the conventional commercial albumin-coated grained zinc plates of the prior art.
“Light-sensitive diazo resins and other like light-sensitive organic materials are notably sensitive to metals. For example, Kalle British Patent No. 699,413, published November 4,1953, at page 1, points out that if water-soluble diazo compounds, or like light-sensitive substances, are coated on metal supports, a plate which can be stored in the unexposed state, i. e. a presensitized plate, cannot be made, ‘owing to the decomposition of the light-sensitive substance caused by the metal.’ Others concerned with metal plates have coated them with a substantial layer of cellulose acetate, or other material, and then hydrolyzed the surface of the acetate and coated the diazo resin or equivalent thereover. No one, insofar as we are aware, ever visualized that aluminum or other metal plates could be used to receive a coating of a light-sensitive diazo resin, or the like, by the simple expedient of first briefly treating the metal surface with an aqueous alkali metal silicate, silicic acid, or equivalent, which will give the metal a permanently hydrophilic surface, e. g. a scum-preventing surface film, and will not measurably increase the thickness of the metal plate. Furthermore, a plate made as just indicated has outstanding quality and performance characteristics, not possessed by any prior plate, and this was also entirely unappreciated heretofore, to the best of our knowledge and belief.
******
“Insofar as we are aware, prior to our invention there had never been a satisfactory presensitized metal lithograph plate; nor had there been any presensitized metal lithographic plate on the market.”
It was also represented to the Patent Office that the applicants had accomplished a result which “neither Kalle & Co. nor anyone else had been able to accomplish, and applicants thereby created a new era in the lithographic printing field.”
The trial court, in minute detail, found these statements to be true, and the findings do not appear to be clearly erroneous. They are, we think, sustained by the evidence.
We find no conduct on the part of the plaintiff, its employees, or its attorneys, during the pretrial proceedings, or in the trial of the case, which would deprive the plaintiff of the relief sought or warrant a reversal.
Affirmed.
. This patent was issued by the Commissioner of Patents on July 26, 1955 to Clifford L. Jewett and John M. Case, employees of the plaintiff, which is now the exclusive owner thereof. The patent is based upon the original application filed December 6, 1950.
. The Court’s Findings of Fact and Conclusions of Law are found in Minnesota Mining & Mfg. Co. v. Bewal, Inc., D.C. Kan., 183 F.Supp. 794, 795.
. The patent refers to the lithographic plate art as it existed at the time of this invention as follows:
“Prior to the present invention the lithographic plates employed in commerce and industry have consisted mainly of grained zinc plates, commonly produced by people who are in the business of graining plates. These grained plates are customarily supplied to a large number of shops throughout the country that make finished plates for the printer and lithographer. These shops coat the grained zinc plates with a suitable composition, normally colloidal and most usually an albumin, ammonium bichromate solution and then, following drying, promptly expose the sensitized plate, through a suitable stencil or negative, to secure the desired image, then apply a developing ink (by swabbing) to the entire surface of the plate, then wash the entire plate with water to wash off the unexposed colloidal and water-soluble materials and developing ink adhering thereto (which develops the image, whereupon the plate maker can see whether he has a good plate and the light-reacted albumin-bichromate layer is thus protected from water, so that it remains ink-receptive), then they apply a gum arabio solution to the printing surface of the plate, and then supply the finished plate to the printer or lithographer, for use on his presses.”
. The following is typical of much of the testimony on the subject:
Michael H. Bruno, Research Director of the Lithographic Technical Foundation, testified: “ * * * Lithographic Technical Foundation is responsible for a good many developments in lithography, but I consider the 3-M plate as one of the most significant advancements in lithography in the last twenty years.”
Ralph B. Mason, a research chemist at the Aluminum Research Laboratory of the Aluminum Company of America, the named inventor in a patent referred to in Patent No. 2,714,066, stated: “Affiant believes that the development of a presensitized plioto-oifset plate, or presensitized printing plate, on a metal base, represented a truly significant step forward in the printing plate art and, practically and commercially, represented a new use of aluminum.”
“Commercial success in itself is not sufficient to sustain a patent but it is evidence of its validity and in doubtful eases may be the deciding factor. * Oliver United Filters v. Silver, 10 Cir., 206 F.2d 658, 663, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416. See 1 Deller, Walker on Patents § 44. (Deller’s Ed. 1957.)
. In Dow Chem. Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 330, 65 S.Ct. 647, 651, 89 L.Ed. 973, the Court said: “It is elemental that the mere substitution of equivalents which do substantially the same thing in the same way, even though better results may be produced, is not such an invention as will sustain a patent.” Accord, Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811.
. In its findings, the court referred to the patents and publications relied on by defendants at the trial as follows:
“Although defendants originally relied upon more than thirty prior art patents and publications, at the pretrial on January 30, 1960, defendants restricted the prior patents and publications, to be relied upon by them at the trial, to the following :
U. S. “ “ 1,946,153 Edwards Feb. 6, 1934
U. S. “ “ 2,225,736 Champion Dec. 24, 1940
U. S. “ “ 2,507,314 Mason May 9, 1950
French patent No. 904,255 Kalle & Co. Feb. 19, 1945
German “ 464,051 Tutzschke Aug. 4, 1928
Canadian “ 427,626 Mason May 22, 1945
British “ 407,830 Siemens Mar. 29, 1933
British “ 433,538 Siemens Aug. 12, 1935
Report 4116, Dept, of Commerce, CIO, Report No. C-4, published July 7, 1945, entitled ‘Report on Diazo Processes Developed by Kalle and Co., A.G.J. I.O.A.’ Final Report No. 13, report prepared by J.I.O.A., Washington, D. C. Report No. C-l published June 17,1945.
“ ‘Mitteilungen des Forschungsinstituts und Profieramts fur Edelmetalle an der staatliehen Hohern Fachsehule Schwabisch Gmund 12, 1-9, 17-29 (1938).’
“Clerc publication cited by the U. S. Patent Office in file wrappers of the Jewett and Case patent.
“ ‘Lithography as Found in Germany’, article in December 1946 issue of Modern Lithography.
“Ad by Kalle & Co. in ‘Der Polygraf’, May 20, 1948 issue, page 59.
“The defendants, at the trial, placed primary reliance upon the Kalle French patent No. 904,255, the Mason Canadian patent No. 427,626, and certain other United States and foreign patents.” [183 F.Supp. 797.]
. The court also found:
“Jewett and Case were the first to produce a commercially acceptable presensitized metal lithographic plate. The materials used in its manufacture were all old. The diazo light-sensitive resin had been known for upwards of 15 years before the Jewett and Case invention. Sheets of aluminum and solutions of alkali metal silicate were much older. All were available to anyone who might have conceived of the presensitized metal lithographic plate defined in the claims of the patent in suit. No one had combined them to produce a successful plate until Jewett and Case did so; and no one had produced and offered commercially a presensitized metal plate, by any means or method, prior to the presensitized metal plate of plaintiff, made according to the Jewett and Case invention, and first sold in August, 1950.”
. In discussing the validity of a combination patent, we think the statement in Reiner v. I. Leon Co., 2 Cir., 285 F.2d 501, 503-504, is appropriate:
“The test laid down is indeed misty enough. It directs us to surmise what was the range of ingenuity of a person ‘having ordinary skill’ in an ‘art’ with which we are totally unfamiliar; and we do not see how such a standard can be applied at all except by recourse to the earlier work in the art, and to the general history of the means available at the time. To judge on our own that this or that new assemblage of old factors was, or was not, ‘obvious’ is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it. There are indeed some sign posts: e. g. how long did the need exist ; how many tried to find the way; how long did the surrounding and accessory arts disclose the means; how immediately was the invention recognized as an answer by those who used the new variant? In the case at bar the answers to these questions all favor the conclusion that it demanded more intuition than was possible by tke ‘ordinary’ workers in the field. The needs were known, but the purpose to fulfil them with that minimum of material and labor disclosed in the patent had not appeared; and economy of production is as valid a basis for invention as foresight in the disclosure of new means. In the case at bar the saving of material as compared to anything that had preceded, was very great indeed; the existing devices at once yielded to Reiner’s disclosure; his was an answer to the ‘long-felt want.’ ”
. David N. Kendall, a consulting chemist, a witness for the defendants, concerning the amount of water-soluble material found on the accused plate, testified:
“Q. You said you found 3 per cent citric acid in the water from the accused plate? A. In the 3 per cent, about 3 per cent in the Polychrome plate, yes.
“Q. Now that is 3 per cent of what? A. Three per cent by weight of the total solids extracted by water from the plates.
“Q. And what was the total? A. What was the total what?
“Q. Solids extracted by water from the plate. A. Oh, it was in the neighborhood of about 10 milligrams I would say, sir.
“Q. Now what is 10 milligrams. Is that a drop, or how can we visualize the size of that? A. Well, it might be, it is something depending on the particular housewife, it might be something like what the housewife would take as a ‘pinch’ of material, a pinch of salt or something like that.
“Q. A little bit of a pinch, and you say there was 3 per cent of a pinch of citric acid? A. I said there was 3 per cent of the total weight of sample there which is about 10 milligrams. I was just trying to visualize for you what a pinch might be. Excuse me, what 10 milligrams might be.
“Q. Well now, that 3 per cent citric acid is going to be something less than about a millionth of an ounce, isn’t it? A. It will be about.3 milligrams, sir.
“Q. And expressing that in. grams, what would that be in grams? A. It would be approximately.07 grams, sir.
“Q..07 grams? A. Well, rounding it off, it is nearest.01 grams. Actually it is.00 with a third decimal being graded in five, sir, around seven, it would be approximately.01.
“Q. How much solids did you find in distilled water? A. There was — I don’t think I actually weighed them. It was a very small amount. I would imagine about, oh, I would guess about.5 of a gram, something like that. * * * ”
. In Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 856, 94 L.Ed. 1097, the Court said:
. The defendant Edwards testified:
“Q. Let me ask you for
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES ex rel. MAJKA v. PALMER, District Director of Immigration.
No. 4953.
Circuit Court of Appeals, Seventh Circuit.
Oct. 16, 1933.
David Snow, of Chicago, 111., for appellant.
Dwight H. Green, U. S. Atty., and Austin Hall, Asst. U. S. Atty., both of Chicago, 111., for appellee.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
SPARKS, Circuit Judge
(after stating the facts as above).
The statute under which the deportation proceedings herein involved were had provides that, “ * * * any alien who was eonvieted, or who admits the commission, pri- or to entry, of a felony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported. * * *” 39 Stat. 889 (8 USCA § 155). Appellant contends that there was no authority for the deportation since there was no showing that the act of perjury constituted a crime under the laws of Poland where the act was committed, and that, admitting that perjury is defined as a crime in the United States, such definition has no bearing outside the United States, and is not applicable where the act is committed outside its own territorial boundaries. Appellant, however, loses sight of section 1750 of the Revised Statutes (22 USCA § 131J, which gives to every notarial act done before any consular officer within the limits of his consulate, the same force and effect as if done in the United States, and provides that in the case of perjury, the offender may be proceeded against in any district of the United States in the same manner as if the offense had been committed within the United States. Without going into the question raised by appellant as to whether or not the United States could have proceeded against him by means of extradition had he decided not to avail himself of the passport illegally obtained, and remained in Poland instead of coming to the United States, it seems clear to us that when he did enter the United States, thereby making use of the fraudulent passport for the very purpose for which the crime was committed, he placed himself within the control of its laws and subjected himself to whatever proceedings it might see fit to bring as the result of his criminal act. It therefore becomes immaterial to determine whether or not perjury is held to be a crime in Poland, since the crime admitted was committed against the United States. Being a crime involving moral turpitude it may be the basis for deportation proceedings. Kaneda v. United States (C. C. A.) 278 P. 694; Yoshimasa Nomura v. United States (C. C. A.) 297 F. 191.
Appellant also contends that even if his acts did constitute a crime against the United States, that crime was not complete until he set foot upon United States territory, and therefore it was not committed prior to entry. With this we do not agree. The crime was completed when he made the false statements concerning a material matter under oath administered by an officer of the United States empowered by it to administer that oath. A crime involving moral turpitude committed within the United States prior to a second entry into this country may be used as the basis for deportation proceedings. United States v. Smith, 289 U. S. 422, 53 S. Ct. 665, 77 L. Ed. 1298. A crime against the United States committed outside its territorial boundaries but within the limits of its consular jurisdiction may also be reason for deporting the alien, particularly where, as in this ease, the act made it possible for him to enter and it might otherwise have been impossible for him to do so.
It is true that in the absence of a conviction of the crime, the immigrant inspector would not have been able to deport the alien ■without his own admission of it. However, the alien did admit both the facts, and that they constituted a crime. The record does not indicate that any unfairness was practiced in securing this admission, and there is no evidence that he was embarrassed or disconcerted during the hearing. He was given the opportunity to secure counsel if he so desired, and he refused to avail himself of that opportunity. We find no reason for reversing the order of the District Court, and it is therefore affirmed.
“Depositions and Notarial Acts; Perjury. Every secretary of embassy or legation and consular officer is hereby authorized, whenever he is required or deems it necessary or proper so to do, at the post, port, place, or within the limits of his embassy, legation, or consulate, to administer to or take from any person an oath, affirmation, affidavit, or deposition, and to perform any notarial act which any notary public is required or authorized by law to do within the United States. Every such oath * * * and notarial act administered, sworn, !- '* * or done, by or before any such officer, when certified under his hand and seal of office, shall be as valid, and of like force and effect within the United States, to all intents and purposes, as if administered * * * or done, by or before any other person within the United States duly authorized and competent thereto. If any person shall willfully and corruptly commit perjury, * v v in any such oath, v * within the intent and meaning of any Act of Congress now or hereafter made, such offender may be charged, proceeded against, tried, convicted, and dealt with in any district of the United States, in the same manner, in all respects, as if such offense had been committed in the United States, before any officer duly authorized therein to administer or take such oath, * * * and shall be subject to the same punishment and disability therefor as are or shall be prescribed by any such act for such offense. *****
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_certreason
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
CHICKASAW NATION v. UNITED STATES
No. 00-507.
Argued October 2, 2001
Decided November 27, 2001
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined as to all but Part II-B. O’Connor, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 96.
Graydon Dean Luthey, Jr., argued the cause for petitioners. With him on the briefs were Stephen W. Ray, Bob W. Rabón, and Dennis W. Arrow.
Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Fallon, Deputy Solicitor General Wallace, Gary R. Allen, and David English Carmack.
Together with Choctaw Nation of Oklahoma v. United States (see this Court’s Rule 12.4), also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the San Carlos Apache Tribe by Richard T. Treon; for the San Manuel Band of Serrano Mission Indians by Jerome L. Levine and Frank R. Lawrence; for the Seminole Tribe of Florida et al. by Hans Walker, Jr., and Judith A. Shapiro; and for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Mark J. Streitz and Michael J. Wahoske.
Briefs of amici curiae urging affirmance were filed for the town of Led-yard, Connecticut, et al. by Benjamin S. Sharp, Guy R. Martin, and Donald C. Mitchell.
Briefs of amici curiae were filed for the Lower Sioux Indian Community in Minnesota et al. by James M. Schoessler, Henry M. Buffalo, Jr., Mark A. Anderson, and Dennis J. Peterson; and for the Muscogee (Creek) Nation by L. Susan Work.
Justice Breyer
delivered the opinion of the Court.
In these cases we must decide whether a particular subsection in the Indian Gaming Regulatory Act, 102 Stat. 2467-2486,25 U. S. C. §§2701-2721 (1994 ed.), exempts tribes from paying the gambling-related taxes that chapter 35 of the Internal Revenue Code imposes—taxes that States need not pay. We hold that it does not create such an exemption.
I
The relevant Indian Gaming Regulatory Act (Gaming Act) subsection, as codified in 25 U. S. C. § 2719(d)(1), reads as follows:
“The provisions of [the Internal Revenue Code of 1986] (including sections 1441, 3402(q), 6041, and 60501, and chapter 35 of such [Code]) concerning the reporting and withholding of taxes with respect to the winnings from gaming or wagering operations shall apply to Indian gaming operations conducted pursuant to this chapter, or under a Tribal-State compact entered into under section 2710(d)(3) of this title that is in effect, in the same manner as such provisions apply to State gaming and wagering operations.”
The subsection says that Internal Revenue Code provisions that “concer[n] the reporting and withholding of taxes” with respect to gambling operations shall apply to Indian tribes in the same way as they apply to States. The subsection also says in its parenthetical that those provisions “includ[e]” Internal Revenue Code “chapter 35.” Chapter 35, however, says nothing about the reporting or the withholding of taxes. Rather, that chapter simply imposes taxes — excise taxes and occupational taxes related to gambling — -from which it exempts certain state-controlled gambling activities. See, e.g., 26 U.S.C. §4401(a) (1994 ed.) (imposing 0.25% excise tax on each wager); §4411 (imposing $50 occupational tax on each individual engaged in wagering business); §4402(3) (exempting state-operated gambling operations, such as lotteries).
In this lawsuit two Native American Indian Tribes, the Choctaw and Chickasaw Nations, claim that the Gaming Act subsection exempts them from paying those chapter 35 taxes from which States are exempt. Brief for Petitioners 34-36. They rest their claim upon the subsection’s explicit parenthetical reference to chapter 35. The Tenth Circuit rejected their claim on the ground that the subsection, despite its parenthetical reference, applies only to Code provisions that concern the “reporting and withholding of taxes.” 208 F. 3d 871, 883-884 (2000); see also 210 F. 3d 389 (2000). The Court of Appeals for the Federal Circuit, however, reached the opposite conclusion. Little Six, Inc. v. United States, 210 F. 3d 1361, 1366 (2000). We granted certiorari in order to resolve the conflict. We agree with the Tenth Circuit.
II
The Tribes’ basic argument rests upon the subsection’s explicit reference to “chapter 35” — contained in a parenthetical that refers to four other Internal Revenue Code provisions as well. The subsection’s language outside the parenthetical says that the subsection applies to those Internal Revenue Code provisions that concern “reporting and withholding.” The other four parenthetical references are to provisions that concern, or at least arguably concern, reporting and withholding. See 26 U. S. C. § 1441 (1994 ed. and Supp. V) (withholding of taxes for nonresident alien); § 3402(q) (withholding of taxes from certain gambling winnings); § 6041 (reporting by businesses of payments, including payments of gambling winnings, to others); §60501 (reporting by businesses of large cash receipts, arguably applicable to certain gambling winnings or receipts).
But what about chapter 35? The Tribes eorrectly point out that chapter 35 has nothing to do with “reporting and withholding.” Brief for Petitioners 28-29. They add that the reference must serve some purpose, and the only purpose that the Tribes can find is that of expanding the scope of the Gaming Act’s subsection beyond reporting and withholding provisions — to the tax-imposing provisions that chapter 35 does contain. The Gaming Act therefore must exempt them (like States) from those tax payment requirements. The Tribes add that at least the reference to chapter 35 makes the subsection ambiguous. And they ask us to resolve the ambiguity by applying a special Indian-related interpretative canon, namely, “‘statutes are to be construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit.’” Id., at 13 (quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985)).
We cannot accept the Tribes’ claim. We agree with the Tribes that rejecting their argument reduces the phrase “(including... chapter 35)...” to surplusage. Nonetheless, we can find no other reasonable reading of the statute.
A
The language of the statute is too strong to bend as the Tribes would wish — i. e., so that it gives the chapter 35 reference independent operative effect. For one thing, the language outside the parenthetical is unambiguous. It says without qualification that the subsection applies to “provisions ... concerning the reporting and withholding of taxes.” And the language inside the parenthetical, prefaced with the word “including,” literally says the same. To “include” is to “contain” or “comprise as part of a whole.” Webster’s Ninth New Collegiate Dictionary 609 (1985). In this instance that which “contains” the parenthetical references — the “whole” of which the references are “parts” — is the phrase “provisions . . . concerning the reporting and withholding of taxes . . . .” The use of parentheses emphasizes the fact that that which is within is meant simply to be illustrative, hence redundant — a circumstance underscored by the lack of any suggestion that Congress intended the illustrative list to be complete. . Cf. 26 U. S. C. § 3406 (1994 ed.) (backup withholding provision not mentioned in parenthetical).
Nor can one give the chapter 35 reference independent operative effect without' seriously rewriting the language of the rest of the statute. One would have to read the word “including” to mean what it does not mean, namely, “including ... and.” One would have to read the statute as if, for example, it placed “chapter 35” outside the parenthetical and said “provisions of the . . . Code including chapter 35 and also provisions ... concerning the reporting and withholding of taxes ....” Or, one would have to read the language as if it said “provisions of the . . . Code . . . concerning the taxation and the reporting and withholding of taxes . . . .” We mention this latter possibility because the congressional bill that became the law before us once did read that way. But when the bill left committee, it contained not the emphasized words (“the taxation and”) but the cross-reference to chapter 35.
We recognize the Tribes’ claim (made here for the first time) that one could avoid rewriting the statute by reading the language outside the parenthetical as if it referred to two kinds of “provisions of the . . . Code”: first, those “concerning the reporting and withholding of taxes with respect to the winnings from gaming,” and, second, those “concerning ... wagering operations.” See Reply Brief for Petitioners 8-10. The subsection’s grammar literally permits this reading. But that reading, even if ultimately comprehensible, is far too convoluted to believe Congress intended it. Nor is there any reason to think Congress intended to sweep within the subsection’s scope every Internal Revenue Code provision concerning wagering — a result that this, unnatural reading would accomplish.
The subject matter at issue also counsels against accepting the Tribes’ interpretation. That subject matter is tax exemption. When Congress enacts a tax exemption, it ordinarily does so explicitly. We can find no comparable instance in which Congress legislated an exemption through an inexplicit numerical cross-reference — especially a cross-reference that might easily escape notice.
As we have said, the more plausible role for the parenthetical to play in this subsection is that of providing an illustrative list of examples. So considered, “chapter 35” is simply a bad example — an example that Congress included inadvertently. The presence of a bad example in a statute does not warrant rewriting the remainder of the statute’s language. Nor does it necessarily mean that the statute is ambiguous, i. e., “capable of being understood in two or more possible senses or ways.” Webster’s Ninth New Collegiate Dictionary 77 (1985). Indeed, in ordinary life, we would understand an analogous instruction — say, “Test drive some cars, including Plymouth, Nissan, Chevrolet, Ford, and Kitchenaid” — not as creating ambiguity, but as reflecting a mistake. Here too, in context, common sense suggests that the cross-reference is simply a drafting mistake, a failure to delete an inappropriate cross-reference in the bill that Congress later enacted into law. Cf. Little Six, Inc. v. United States, 229 F. 3d 1383, 1385 (CA Fed. 2000) (Dyk, J., dissenting from denial of rehearing en banc) (“The language of the provision has all the earmarks of a simple mistake in legislative drafting”).
B
The Gaming Act’s legislative history on balance supports our conclusion. The subsection as it appeared in the original Senate bill applied both to taxation and to reporting and withholding. It read as follows:
“Provisions of the Internal Revenue Code... concerning the taxation and the reporting and withholding of taxes with respect to gambling or wagering operations shall apply to Indian gaming operations ... the same as they apply to State operations.” S. 555, 100th Cong., 1st Sess., 37 (1987).
With the “taxation” language present, it would have made sense to include chapter 35, which concerns taxation, in a parenthetical that included other provisions that concern reporting and withholding. But the Senate committee deleted the taxation language. Why did it permit the cross-reference to chapter. 35 to remain? Committee documents do not say.
The Tribes argue that the committee intentionally left it in the statute in order to serve as a substitute for the word “taxation.” An amicus tries to support this view by pointing to a tribal representative’s testimony that certain Tribes were “opposed to any indication where Internal Revenue would be collecting taxes from the tribal bingo operations.” Hearings on S. 555 and S. 1303 before the Senate Select Committee on Indian Affairs, 100th Cong., 1st Sess., 109 (1987) (statement of Lionel John, Executive Director of United South and Eastern Tribes). . Other Tribes thought the “taxation” language too “vague,” preferring a clear statement “that the Internal Revenue Service is not being granted authority to tax tribes.” Id., at 433,435 (statement of Charles W. Blackwell, Representative of the American Indian Tribal Government and Policy Consultants, Inc.).
Substitution of “chapter 35” for the word “taxation,” however, could not have served the tribal witnesses purposes, for doing so took from the bill the very words that made clear the tribes would not be taxed and substituted language that made it more likely they would be taxed. Nor can we believe that anyone seeking to grant a tax exemption would intentionally substitute a confusion-generating numerical cross-reference, see Part II-A, supra, for pre-existing language that unambiguously carried out that objective. It is far easier to believe that the drafters, having included the entire parenthetical while the word “taxation” was still part of the bill, unintentionally failed to remove what had become a superfluous numerical cross-reference — particularly since the tax-knowledgeable Senate Finance Committee never received the opportunity to examine the bill. Cf. S. Doc. No. 100-1, Senate Manual 30 (1987) (proposed legislation concerning revenue measures shall be referred to the Committee on Finance).
Finally, the Tribes point to a letter written by one of the Gaming Act’s authors, stating that “by including reference to Chapter 35,” Congress intended “that the tax treatment of wagers conducted by tribal governments be the same as that for wagers conducted by state governments under Chapter 35.” App. to Pet. for Cert. 113a. This letter, however, was written after the event. It expresses the views of only one member of the committee. And it makes no effort to explain the critical legislative circumstance, namely, the elimination of the word “taxation” from the bill. The letter may express the Senator’s interpretive preference, but that preference cannot overcome the language of the statute and the related considerations we have discussed. See Heintz v. Jenkins, 514 U. S. 291, 298 (1995) (A “statement [made] not during the legislative process, but after the statute became law ... is not a statement upon which other legislators might have relied in voting for or against the Act, but it simply represents the views of one informed person on an issue about which others may (or may not) have thought differently”). Cf. New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519, 564, n. 18 (1979) (Powell, J., dissenting) (“The comments ... of a single Congressman, delivered long after the original passage of the [act at issue], are of no aid in determining congressional intent...”).
In sum, to adopt the Tribes’ interpretation would read back into the Act the very word “taxation” that the Senate committee deleted. We ordinarily will not assume that Congress intended “‘to enact statutory language that it has earlier discarded in favor of other language.’ ” INS v. Cardoza-Fonseca, 480 U. S. 421, 443 (1987) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 392-393 (1980)); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 200 (1974) (same); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 157 (1973) (same). There is no special reason for doing so here.
C
The Tribes point to canons of interpretation that favor their position. The Court has often said that “ ‘every clause and word of a statute’” should, “‘if possible,’” be given “ ‘effect.’ ” United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)). The Tribes point out that our interpretation deprives the words “chapter 35” of any effect. The Court has also said that “statutes are to be construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U. S., at 766; South Carolina v. Catawba Tribe, Inc., 476 U. S. 498, 520 (1986) (Blackmun, J., dissenting). The Tribes point out that our interpretation is not to the Indians’ benefit.
Nonetheless, these canons do not determine how to read this statute. For one thing, canons are not mandatory rules. They are guides that “need not be conclusive.” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001). They are designed to help judges determine the Legislature’s intent as embodied in particular statutory language. And other circumstances evidencing congressional intent can overcome their force. In this instance, to accept as conclusive the canons on which the Tribes rely would produce an interpretation that we conclude would conflict with the intent embodied in the statute Congress wrote. Cf. Choteau v. Burnet, 283 U. S. 691 (1931) (upholding taxation where congressional intent reasonably clear); Superintendent of Five Civilized Tribes v. Commissioner, 295 U. S. 418 (1935) (same); Mescalero Apache Tribe v. Jones, supra (same). In light of the considerations discussed earlier, we cannot say that the statute is “fairly capable” of two interpretations, cf. Montana v. Blackfeet Tribe, supra, at 766, nor that the Tribes’ interpretation is fairly “possible.”
Specific canons “are often countered ... by some maxim pointing in a different direction.” Circuit City Stores, Inc. v. Adams, supra, at 115. The canon requiring a court to give effect to each word “if possible” is sometimes offset by the canon that permits a court to reject words “as surplus-age” if “inadvertently inserted or if repugnant to the rest of the statute . . . .” K. Llewellyn, The Common Law Tradition 525 (1960). And the latter canon has particular force here where the surplus words consist simply of a numerical cross-reference in a parenthetical. Cf. Cabell Huntington Hospital, Inc. v. Shalala, 101 F. 3d 984, 990 (CA4 1996) (“A parenthetical is, after all, a parenthetical, and it cannot be used to overcome the operative terms of the statute”).
Moreover, the canon that assumes Congress intends its statutes to benefit the tribes is offset by the canon that warns us against interpreting federal statutes as providing tax exemptions unless those exemptions are clearly expressed. See United States v. Wells Fargo Bank, 485 U. S. 351, 354 (1988) (“[Exemptions from taxation . . . must be unambiguously proved”); Squire v. Capoeman, 351 U. S. 1, 6 (1956) (“[T]o be valid, exemptions to tax laws should be clearly expressed”); United States Trust Co. v. Helvering, 307 U. S. 57, 60 (1939) (“Exemptions from taxation do not rest upon implication”). Nor can one say that the pro-Indian canon is inevitably stronger — particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue. Cf. post, at 100 (O’Connor, J., dissenting). This Court’s earlier cases are too individualized, involving too many different kinds of legal circumstances, to warrant any such assessment about the two canons’ relative strength. Compare, e. g., Choate v. Trapp, 224 U. S. 665, 675-676 (1912) (interpreting statement in treaty-related Indian land patents that land is “nontaxable” as creating property right invalidating later congressional effort to tax); Squire, supra, at 3 (Indian canon offsetting tax canon when related statutory provision and history make clear that language freeing Indian land “‘of all charge or incumbrance whatsoever’” includes tax); McClanahan v. Arizona Tax Comm'n, 411 U. S. 164, 174 (1973) (state tax violates principle of Indian sovereignty embodied in treaty), with Mescalero, supra (relying on tax canon to find Indians taxable); Choteau, supra (language makes clear no exemption); Five Tribes, supra (same).
Consequently, the canons here cannot make the difference for which the Tribes argue. We conclude that the judgments of the Tenth Circuit must be affirmed.
It is so ordered.
Justice Scalia and Justice Thomas join all but Part II-B of this opinion.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
DIZE v. MADDRIX.
No. 5240.
Circuit Court of Appeals, Fourth Circuit.
Aug. 1, 1944.
Certiorari Granted Nov. 13, 1944.
See 65 S.Ct. 135.
Harry Leeward Katz and Hyman Ginsberg, both of Baltimore, Md. (Ginsberg & Ginsberg, of Baltimore, Md., on the brief), for appellant.
Eugene A. Alexander, III, of Baltimore, Md. (Paul Berman, of Baltimore, Md., on the brief), for appellee.
Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges.
DOBIE, Circuit Judge.
Lake Maddrix (hereinafter called Maddrix) brought a civil action in the United States District Court for the District of Maryland against L. Elwood Dize, trading as Dize Box Company, (hereinafter called Dize) to recover unpaid overtime compensation, liquidated damages and a reasonable attorney’s fee under the Fair Labor Standards Act (hereinafter called the Act), 29 U.S.C.A. § 201 et seq. The District Court, sitting without a jury, entered judgment in favor of Maddrix and against Dize for the sum of $1,052.10, plus an attorney’s fee of $75. Dize has duly appealed to us.
Dize contends that he was not engaged in the production of goods for shipment in interstate commerce so as to bring him within the purview of the Act. True it is that the boxes and barrels made by Dize were sold locally to packers and shippers of crabmeat and oysters. But, as Dize well knew, a great majority of the boxes and barrels made and sold by him were used by these packers and shippers for shipments in interstate commerce. This case is practically on all fours with Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897, certiorari denied Enterprise Box Co. v. Holland, 316 U.S. 704, 62 S.Ct. 1312, 86 L.Ed. 1772. There, too, the boxes were made and sold locally to manufacturers of cigars in Florida, but, again, the vast majority of boxes, to the knowledge of the boxmaker, were used for the shipment of cigars in interstate commerce. We think it is unnecessary to add to the able opinion of Circuit Judge Holmes in that case, holding that the maker of the cigar boxes was subject to the Act.
Nor are we impressed by the contention of Dize that he falls within the exemption set out in § 213(a) (5) of the Act. This section excludes those engaged in catching, taking, harvesting, etc., of fish, sponges or other forms of animal and vegetable life, including the loading or packing of these products for shipment. Clearly Dize was engaged in no such endeavors. As well might we exempt a manufacturer of rubber boots shipped in interstate commerce to fishermen.
Dize tendered to Maddrix the sum of $500, which Maddrix accepted and Maddrix signed a comprehensive release, covering all of his claims against Dize. The District Judge properly found that both parties knew that more than $500 was due. Accordingly, it is clear that such a release is not a legitimate defense to the proper claim of Maddrix under the Act. Guess v. Montague, 4 Cir., 140 F.2d 500. Nor does the subsequent tender by Dize to Maddrix of the sum claimed by Maddrix defeat the claim of Maddrix for liquidated damages under the Act, when Maddrix, after he had made a demand on Dize for liquidated damages, flatly refused this tender.
Dize attempts to make much of the confused bookkeeping as to the number of hours actually worked by Maddrix, and the fact that Maddrix was Dize’s bookkeeper. There was, however, substantial evidence to support the finding of the District Judge as to the number of hours worked by Maddrix, and the amount due to him under the Act, and certainly this finding is not clearly erroneous. Federal Rules of Civil Procedure, Rule 52(a), 28 U.S.C.A. following section 723c. It is accordingly binding on us.
We agree with the District Judge that the whole conduct of Maddrix in the premises rather shocks our sense of fair play. But under the Act, and under our decision m Guess v. Montague, supra, a judgment in favor of Maddrix seems unavoidable. There is nothing that we can do but enforce the law as Congress has written it.
The judgment of the District Court is affirmed.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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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".
MAYFAIR EXTENSION, Inc., Appellant, v. Warren E. MAGEE, Appellee.
No. 13319.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 5, 1957.
Decided Feb. 21, 1957.
Mr. Robert H. McNeill, Washington, í). C., for appellant.
Mr. William J. Hughes, Jr., Washington, D. C., for appellee.
Before BAZELON, FAHY and BAS-TIAN, Circuit Judges.
PER CURIAM.
This appeal is from the District Court’s denial of appellant corporation’s motion, under Rules 55 and 60, Fed.R.Civ.P., 28 U.S.C. to vacate the default judgment entered in appellee’s suit on two promissory notes and for attorney’s fees.
The suit was filed on March 30, 1954, when appellee was general counsel and secretary of appellant. Service was made the next day on appellant’s executive vice president, Cassell. According to affidavits in support of the motion to vacate, Cassell and appellee were denied re-election at a Board of Directors meeting on April 16, 1954, and they withdrew from the meeting without mentioning the suit and the service upon CasselL Appellee obtained judgment by default on April 26,1954.
It appears from Cassell’s affidavit that one Walker, who was employed as a property manager by appellant corporation after April 16, 1954, knew of the suit and service of process before the entry of the default judgment. Walker’s affidavit, executed a week or so after Cas-sell’s was filed, is completely silent as to whether he had such knowledge or, if so, conveyed it to any officer or director. There is no dispute, however, that appellant was fully advised of the judgment no later than May 7, 1954. The motion to vacate was not filed until April 25, 1955 — almost a year later.
Appellant says its motion is premised on a breach of trust by attorney against client and therefore falls within Rule 60(b) (3), Fed.R.Civ.P. Under this rule a default judgment may be set aside for “fraud * * *, misrepresentation, or other misconduct of an adverse party.” Appellant argues that a motion to vacate for such reason may be brought any time within one year. But the rule requires that “The motion shall be made within a reasonable time, and [when based upon Rule 60 (b^ than one year after the [default] judgment * * *.” Thus necessary that the motic in one year, but also within a reasonable time within the one-year period. Upon the record before us, the latter requirement The District Court was, therefore, correct in denying the motipn. (3)] not more it was not only on be filed with-that it be filed
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_appel2_1_3
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
THE SAN GIUSEPPE. M. COOK & SON, Ltd., et al. v. SAGLIETTO.
No. 4809.
Circuit Court of Appeals, Fourth Circuit.
Aug. 29, 1941.
Braden Vandeventer, of Norfolk, Va., and Eberhard P. Deutsch, of New Orleans, La. (Vandeventer & Black, of Norfolk, Va., Deutsch and Kerrigan, of New Orleans, La., and Eugene W. Ong, of New York City, on the brief), for appellants.
Leon T. Seawell, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
These are cross appeals in a suit in admiralty brought by British cargo owners against the Italian vessel San Giuseppe which arrived at the port of Norfolk, Va., on June 8, 1940, with cargo destined for London, England, and was interned at Norfolk as the result of the war between Great Britain and Italy, which began June 10th. The suit was for possession of the cargo and for damages sustained as the result of the necessity of transshipment. Decree was entered directing the delivery of the cargo to the owners but absolving the vessel from the damages claimed. The cargo owners appeal from that portion of the decree refusing them damages, contending that the vessel was guilty of deviation in putting into the port of Norfolk and was consequently liable as an insurer for damages sustained by the cargo. The vessel appeals from that portion of the decree charging her with the expense of unloading at Norfolk, contending that under the provisions of the bills of lading this was an expense to be borne by the cargo owners.
The San Giuseppe was an Italian steamship under time charter to the Continental Grain Company and sublet under a voyage charter to the Gans Steamship Line of New York. The voyage charter provided that she should have liberty to coal at Norfolk and Newport News. Early in June she took on a cargo of timber, staves, turpentine and tar at New Orleans, La. and Panama City, Fla., for delivery in London, England, and collected freight thereon in excess of $200,000. The master, in giving notice of readiness to load to the agents of the voyage charterer, had advised that he would call at Norfolk for bunkers, as he had been instructed to do by the time charterers. He left New Orleans with only 617 tons of bunkers aboard and had been instructed to have 600 tons when leaving Norfolk for the voyage across the ocean. He issued bills of lading in the name of the vessel covering the cargo and providing that same was to be transported by the vessel to London “with liberty to call at any port or ports, in or out of the customary order, to receive or discharge coal, cargo, passengers, or for any other purpose”. Because of war conditions, it was necessary for vessels bound for England to stop at some Atlantic port for sailing orders for the crossing of the ocean, as these were secret orders, were changed every three or four days and could not be communicated to the vessel at sea. While the vessel was at New Orleans, the master was notified by the British Consul there to get his sailing orders for crossing the Atlantic from the British Consul at Norfolk.
On June 8th, the San Giuseppe entered the port of Norfolk for bunkers and sailing orders. The master applied to the charterer’s agent for bunkers but did not take them on, as he was directed by the charterer’s agent to see the Italian consular agent at Norfolk, and was directed by the latter to remain in port until further orders. On June 10th he received a radio message from the Italian government advising of Italy’s entrance into the war and directing all Italian merchant vessels to seek the nearest neutral port and remain there. He consequently remained in Norfolk. If he had not put into Norfolk but had followed the direct route from the Gulf ports to London, he would have been 740 miles off shore at the time of the receipt of the radio message from the Italian government. Had he been in this position, it would have been his duty to turn about and make for the port of Norfolk, and he testifies that this is what he would have done.
The court below found “that in the shipping trade it has been considered over a long period of time to be a usual and reasonable practice of coal burning vessels similarly situated on voyages from Gulf ports to the United Kingdom or continental European ports to call at Norfolk for bunkers”. This was supported by the testimony of a large number of witnesses who were shown to have knowledge of the customs and practices of the trade. It was shown that more vessels coal at Norfolk and Newport News than at any other port on the Atlantic or Gulf coasts of the United States, that coal of superior quality is obtained there, that the price is much lower than at Gulf ports, and that from 1,800 to 2,000 ships a year call there for bunkers. The witness Meyer, president of Gans Steamship Line, the voyage charterer, testified that it was customary for vessels of his company to bunker at Norfolk on such voyages, that this practice had been followed by this vessel on two voyages immediately prior to this, and that marine insurers, who charge an additional premium for extra calls, make no such charge for a bunkering call at Norfolk. The witness Hasler of Norfolk who was arranging to bunker the vessel testified: “It is nothing unusual for a steamer loading general cargo in the Gulf and proceeding to the United Kingdom to call in at Hampton Roads on the homeward voyage to replenish her bunkers. That has been in vogue, to my knowledge, for the last thirty years, anyway”. The vessel’s master, Captain Saglietto, testified that the twenty ships of his company’s fleet, of which he is senior officer, bunker at Norfolk on all voyages from the Gulf to the United Kingdom or continental Europe. Sperling, an officer of Continental Grain, time charters of the vessel, testified: “The custom is usually to bunker at Hampton Roads after loading at the Gulf”. “Yes, over a period of six years (period of witness’ employment by Continental Grain) say about 90 per cent of our coal-burning vessels loading in the Gulf for either United Kingdom or the Continent bunkered at Norfolk”. Stevenson, president of Bulk Carriers Corporation and of Ocean Freighting and Brokerage Corporation, testified: “It has been quite the recognized custom for vessels loading in the Gulf bound for the United Kingdom to go via Hampton Roads for bunkers, * * * I consider it a reasonable practice”. The substance of the above testimony was reiterated by Schulze, president of Richard Meyer Company, Havens, an officer of the Strong Shipping Company, Gavigan, president of Funch Edye & Company, and Salz-mann, employed by the latter company in charge of its Gulf to Scandanavia operations.
There was no testimony in contradiction of the above, except that the cargo owners introduced a list- showing that only a little over 11 per cent of coal-burning vessels bound from Gulf ports for ports in the United Kingdom stopped at Norfolk for bunkers during the five and a half year period preceding the voyage in question. This list, however, did not show the vessels which put into Norfolk for some other purpose as well as for bunkers nor did it show vessels bound for continental ports which bunkered there, or which of the vessels came to the Gulf ports with sufficient bunkers for a return voyage, a frequent practice prior to the war on the part of vessels from European ports making a voyage and return to ports of the Gulf.
The bills of lading provided that the prepaid freight “shall be deemed fully and irrevocably earned upon receipt of the goods by the carrier”. They contained the usual “restraint of princes” provision and a war risk clause quoting a provision of the time charter to the effect that, if the vessel were prohibited from going to the port of discharge by the government of her flag, she should discharge the cargo at any other port covered by the charter party as ordered by the charterers and be entitled to freight as if she had discharged at the port to which she had been originally ordered. The cargo owners do not controvert that the effect of these protective clauses, if applicable, is to exonerate the vessel from liability for the damages claimed by them; but their contention is that the protective clauses are not applicable because, they argue, in calling at Norfolk the vessel was guilty of unreasonable deviation, the effect of which was to displace the protective clauses and render her liable for the damage sustained by the cargo owners, irrespective of whether there was or was not causal connection between deviation and loss. The court below held that the call at Norfolk was a reasonable deviation and that the vessel did not thereby forfeit the protection of the contract of carriage. It held, also, that a further reason for denying damages was the lack of causal connection between the alleged deviation and the loss.
We agree with the court below that there was no unreasonable deviation on the part of the vessel. Whether the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(4) has enlarged the scope of permissible departure from the course of the voyage, we need not stop to inquire. Prior to the passage of the act, a deviation was defined as a “voluntary departure without necessity or reasonable cause from the regular and usual course of the voyage”. 1 Bouv. Law Dict., Rawle’s Third Revision, p. 860; Hostetter v. Park, 137 U.S. 30, 40, 11 S.Ct. 1, 34 L.Ed. 568; Constable v. National Steamship Co. 154 U.S. 51, 66, 14 S.Ct. 1062, 38 L.Ed. 903. A departure from the regular course of the voyage through necessity or for reasonable cause was not, under the prior maritime law, a deviation forfeiting insurance or rendering the vessel an insurer; and, for the purposes of this case, we may assume that the words “reasonable deviation” as contained in the statute confer no greater liberty upon the vessel than she had under the rule of the maritime law prior to its enactment. When the liberty to call clause is taken into consideration, we think that the call at Norfolk cannot be considered either unreasonable or without necessity within the meaning of that rule.
It may be conceded that the evidence is not sufficient to establish a custom, within the technical meaning of that term, for vessels bound from Gulf ports to ports of the United Kingdom to call at Norfolk for bunkers. We think, however, that it does establish that such practice is not unreasonable and is within the “liberty to call” clause contained in the bill of lading. While that clause should not be construed as authorizing a complete departure from the general course of the voyage (Swift & Co. v. Furness, Withy & Co., D.C., 87 F. 345) it must certainly be interpreted as permitting a call for bunkers at a port within the general course of the voyage and ancillary thereto, if it is to be given any meaning whatever. The suggestion that such call is authorized only in cases of emergency, or where there is necessity for bunkering by stages, would deny it all meaning, as a call for bunkers, in the absence of the clause, would not amount to deviation under such circumstances. Nor is the vessel to be denied the benefit of the clause because of failure to take on sufficient bunkers for the entire voyage prior to its commencement. One of the manifest purposes of the clause is to give to the vessel some liberty of action with respect to coaling, so that she may avail herself of the privilege of calling for bunkers on the general course of the voyage at ports where coal may be obtained advantageously. As was well said by Cross, J., in the case of J. Peters v. Canada Sugar Refining Company, Montreal Law Reports, 2 Q.B. 420, where the charter party described the voyage from Havana to Montreal via the River St. Lawrence, and where the ship cleared Havana for Sydney with only enough coal to reach that point and stopped at Sydney for bunkers:
“The declaration that the vessel was in every way fitted for the voyage, did not contradict or exclude the exception in the charter that she was at liberty to call at any intermediate port for coal. The exception implied that the calling for coal was a convenient incident of the voyage which the ship might avail herself of, and a presumption that a full provision of coal at Cuba for the whole voyage might be inconvenient, and not a necessity; that a vessel was sufficiently sound and provided for a voyage when she had such supply of coal as suited the route, a complement being more suitably obtained at a call port where she reserved liberty to stop for a supply, besides which, it was the duty of the charterer, in order to protect himself, to have insured according to the terms which he had agreed to by the charter, making the same exception in the policy as was contained in the charter.”
Pertinent also is the recent decision of the House of Lords in the case of The Indian City, Reardon Smith Line, Ltd. v. Black Sea & Baltic General Ins. Co., Ltd., [1939] App.Cas. 562, referred to by the court below. In that case the vessel was on a voyage from Poti in the Black Sea to a port of the United States. Instead of taking on oil bunkers at Poti she called for same at Constantza in Rumania. The contract gave the vessel liberty to call for the purpose of bunkering. In holding that this did not constitute deviation, Lord Wright' said:
“In 1930 cheap fuel oil for bunkers became available at Constantza in Rumania. Constantza, thereupon, became largely used as a bunkering port in particular for vessels bound from the Black Sea on long ocean voyages. In 1932 and 1933, 114 oil-burning vessels called at Constantza for bunkering only. This figure shows the importance of the port as a bunkering port. It is not necessary to analyze closely what proportion of oil-burning vessels sailing through the Bosphorus on ocean voyages bunkered at Constantza. It is sufficient for purposes of this case to record what has been accepted on both sides, namely, that 25% of the whole number called and bun-kered at Constantza in the three and a quarter years before the casualty which overtook the Indian City. I emphasize these facts, because the position of Con-stantza as a usual and recognized bunker-ing port in the Black Sea seems to me to be a key point in the case. * * * In modern times in all long ocean voyages, the need to replenish bunkers (coal or oil) has to be considered. The doctrine of stages of the voyage which enables a shipowner to start with bunkers sufficient for the stage, so long as he fills up his bunkers at the next bunkering port, necessarily involves calling at that port, and also perhaps, later ports, in order to fulfill the recurring obligation to keep the vessel seaworthy in regard to bunkers. Thus to call at such ports has become an ordinary incident of the voyage. The need to do so may help to determine the general route, for instance, whether it is to be by the Cape of Good Hope or the Suez Canal. A shipowner is entitled, with certain limits determined by what is reasonable, to be guided in his choice of bunkering ports by considerations of cheapness and convenience. * * * He may decide to fill up his bunkers after sailing from the port of loading at some convenient port. He may decide to do this at Constantza, at Istanbul, or at Algiers, or at Oran, or at Ceuta, all of which are available bunkering ports, starting from the loading port with sufficient bunkers to take the ship to the next bun-kering port which he decides to use. In this way he selects the stage for bunker-ing. The vessel must be seaworthy for that stage, but it is the ship owner’s province to fix the stage, that is, to determine where he will bunker, so long as his decision is reasonable and usual. In the present case, as in the other voyages during the relevant period, the appellants selected Constantza as the bunkering port. Their case is that they had done so a great many times without objection and save in this one case without mishap. They relied on all the evidence to which I have briefly referred to support their claim that the route by Constantza is a usual route. The position therefore is that to call at some port for bunkers is no deviation, and the only question is whether Constantza is a usual and reasonable port of call for this purpose.
“I agree with Greer, L. J., that the evidence that 25% of oil-burning vessels sailing from the Black Sea on ocean voyages call at Constantza for bunkers is sufficient to show a usual route. The shipowner is not here attempting to prove a custom: To prove a custom he would have to show that it was uniform and universal in the trade, but that is not what is in question here. Nor need he show that other routes were not available, that is, that there were not alternative ports of call at which he might bunker. There are no doubt other available ports of call for this purpose, some, and perhaps all, of which would involve much less extra steaming. I think the shipowner is entitled to balance the cost to him of extra steaming against the cheapness or convenience of Constantza, so long as to do so is not unreasonable in regard to the interests 'of the charterer or any other persons who might be concerned.”
In point, too, is the supplemental opinion of Judge Learned Hand in The Blandon, D.C., 287 F. 722, 725, in which was involved an alleged deviation to Philadelphia to take on cargo on a voyage from New York to Valencia. In holding that this call did not constitute a deviation in the light of the liberty to call clause, Judge Hand said:
“In my earlier decision I neglected to observe the clause in the main body of the bill of lading; that point not being argued at the hearing or in the briefs. It is this: ‘With the liberty to call at any port or ports in or out of the customary route in any order.’ The question is whether this clause justified the ship in calling at Philadelphia, a deviation which I have held to have been otherwise unjustified. If these words are to mean anything at all, it seems to me that they must include such a stop as Philadelphia. True, it was not a stop on the customary route; at least, I must assume so on this record. Yet it was expressly agreed that the port might be ‘out of the customary route.’ What more limited sense can those words mean than a stop at a place some thirty hours away? It is said that the clause will allow only reasonable deviations, and this is indeed true, since such a clause is to be construed in its context. Swift & Co. v. Furness, etc. [Co.] (D.C.) 87 F. 345. For example, it might not' allow a side voyage to Tam-pico or Galveston; certainly it would not permit a call at Rio or Montevideo. But it must mean to give the ship permission to steam by a different route from that she was otherwise bound to take, besides giving her leave to make ports of call en route; i. e., ‘in * * * the customary route.’ Such permission involves delay, and was meant to involve delay.”
The law relating to “liberty to call” clauses was well summed up by the District Judge in W. R. Grace & Co. v. Toyo Kisen Kabushiki Kaisha, D.C., 7 F. 2d 889, 891, 892, affirmed 9 Cir., 12 F.2d 519, certiorari denied 273 U.S. 717, 47 S.Ct. 109, 71 L.Ed. 856, as follows:
“As' a conclusion from all the cases, it is apparent that the ‘general liberty1 clause is not treated as of ‘no effect.’ It is a stipulation of the parties, to be given effect, like other stipulations, in so far as it does not conflict with the Harter Act (Comp.St. §§ 8029-8035 [46 U.S.C.A. §§ 190-195]), or the general purpose and policy of the law, or the real intent of the contract between shipper and carrier. It may be fairly said that reservations by a carrier of general liberties of departure from the route of the contractual voyage must be read in due relation and subordination to the main commercial purpose of the contract of affreightment, and as a matter of law will justify only such deviations from that route as are consistent with that particular commercial purpose.
“The propriety of any particular deviation is a question of fact in each case and there is no fixed rule for such determination. It is a question of inherent reasonableness, and pertinent to the inquiry of the surrounding circumstances, namely, the commercial adventure, which is the subject of the contract, the character of the vessel, the usual and customary route, the natural and usual ports of call, the location of the port to which the deviation was made, and the purpose of the call thereat.”
See, also, the Nichiyo Maru, D.C., 14 F. Supp. 727, 729, affirmed 4 Cir., 89 F.2d 539; United States v. Los Angeles Soap Co., 9 Cir., 83 F.2d 875, 889; The Salvore, 2 Cir., 60 F.2d 683, 685; The Half Moon, D.C., 21 F.2d 447, affirmed Callister v. U. S. Shipping Board, etc., Corp., 2 Cir., 30 F.2d 1008; Dietrich v. U. S. Shipping Board E. F. Corp., 2 Cir., 9 F.2d 733; The Emelia S. dePerez, D.C., 287 F. 361, affirmed 2 Cir.,. 288 F. 1019; The Citta DiMessina, D.C., 169 F. 472; The Sidonian, D.C., 34 F. 805.
We find no binding authority to the contrary in the cases relied on by the cargo owners. The Willdomino, 272 U.S. 718, 47 S.Ct. 261, 262, 71 L.Ed. 491 was a clear case of deviation. The vessel cleared Pon-ía Delgada for New' York without sufficient coal for the voyage and then, after proceeding for five or six days on the course to New York, changed her course for North Sydney, Nova Scotia. The court held that proceeding for five or six days on the course for New York was a deviation from any permissible course to North Sydney, but did not hold that she might not have called at North Sydney under the terms of her bill of lading. On this point the court said: “Nothing in the present bills of lading suggests that the vessel might wander about the sea, heading first for one port, and then without adequate reason for .another. If the Willdomino had the privilege of going from Ponta Delgada to North Sydney and intended so to do, it was her duty to take the ordinary course. This she did not do.”
The Henry W. Cramp, 3 Cir., 20 F.2d 320 in no way involved the right to call for bunkers as an incident of the voyage under a liberty to call clause, but was the case of a sailing vessel which sailed from Pensacola, Florida for Genoa, Italy, and which put into Norfolk and stayed there for two months without any reason or excuse disclosed by the record. The case of Hurlbut v. Tumure, 2 Cir., 81 F. 208, affirming, D. C., 76 F. 587, is more nearly in point, but that was a case of general average. The vessel there had cleared from Cuba for New York with an insufficient supply of fuel and had been obliged to burn a part of her cargo and equipment to get into Newport News. What was decided was that the vessel could not throw into general average the cost of putting into the port of Newport News merely because the bills of lading gave l^er the right to call there. The court held that not having fulfilled her duty to take the usual supply of coal when sailing for New York, she must be deemed to have voluntarily taken the risk of putting into some port of call in order to make that supply good. Whether it would have constituted a deviation for the vessel to have-put into Newport News if she had sailed for that port with sufficient coal for the voyage was not directly involved.
There is another ground upon which the call at Norfolk is justified, not only as being reasonable, but also as being necessary in the prosecution of the voyage to London. The war between England and Germany was in progress and a crossing to England was fraught with the gravest danger to a vessel carrying a contraband cargo. Before a crossing of the ocean could be attempted, it was necessary for the vessel to call at an Atlantic port for sailing orders, so that she might know where to meet her convoy and protect herself in the meantime from the danger of German raiders and submarines. These orders could not be communicated to the vessel at sea because of the necessity for secrecy, and they could not be given her at New Orleans or Panama City because they were changed every few days. A call at some Atlantic port for such orders was, therefore, a necessary incident of the voyage; and, as Norfolk was the most convenient port and was the port at which bunkers were to be taken, a call there for sailing orders was directed by the British consul at New Orleans. Even if there had been no intention to take bunkers, a call at some Atlantic port would have been necessary, and Norfolk, being the nearest and most convenient, was the logical port at which to call. The intention to take bunkers there, even if a call for that purpose alone would not have been justified, cannot make the vessel guilty of a deviation in making the call for orders which she was under the necessity of making. To say that she would have stopped for bunkers whether she needed the orders or not is beside the point, for she must have stopped for orders whether needing the bunkers or not. In the absence of the “liberty to call” clause in the bill of lading, such necessary call in pursuance of the voyage could not be held a deviation. It was certainly not an unreasonable exercise of the privilege conferred by that clause.
Even without the necessity of calling for orders, we think that the call at Norfolk would have been justified by tjie prevailing war conditions. As a matter of fact war was only two days off when the call was made, and already Italian consuls were refusing to permit vessels in port to put to sea. For a vessel to seek port under such circumstances could hardly be held an unreasonable deviation from her voyage. The Kronprinzessin Cecilie 244 U.S. 12, 37 S.Ct. 490, 61 L.Ed. 960. That the captain may not, have known of the imminence of war, would not, we think, deprive the vessel of the right to rely upon the fact that, in calling at Norfolk, she in fact did precisely what she should have done in the light of existing circumstances. If she did what was right, she ought not be deprived of the benefit of right action because the captain may have acted more .wisely than he knew.
If the call at Norfolk were deemed a deviation, a grave question would be presented as to whether the damages claimed by the cargo owners would be recoverable; for unquestionably the damage resulting from transshipment must have been incurred by the cargo owners whether deviation by the vessel had occurred or not. The vessel, if she had continued on her direct course to London, would have been only 740 miles from Norfolk when the radio message was sent out announcing the war between Great Britain and Italy and directing Italian vessels to put into the nearest neutral port. It would have been her duty to obey this order; and her master testifies that he would have put into Norfolk as the nearest available port, the reasonable thing for him to do under the circumstances. While it is true that, upon a deviation, the vessel becomes an insurer of the cargo, the doctrine seems fairly well established that she is not liable for loss or damage which “must equally have occurred even if there had been no deviation”. Scrutton on Charter Parties and Bills of Lading, p. 310; Story on Bailments, 8th Ed., pp. 466, 467; Williston on Contracts, § 1096; James Morrison & Co. Ltd. v. Shaw, Savill & Albion, Ltd., [1916]. 2 K.B. 783; The Hermosa, 9 Cir., 57 F. 2d 20, 27; Maghee v. Camden, etc., R. Co. 45 N.Y. 514, 6 Am.Rep. 124; Memphis & C. R. R. Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; The Ida, 2 Cir., 75 F.2d 278; Globe & Rutgers Fire Ins. Co. v. United States, 2 Cir., 105 F.2d 160, 166; The Caterina Gerolimich, D.C., 43 F.2d 248, 252. Since we are of opinion, however, that there was no deviation by the vessel, it is not necessary to decide this point.
On the appeal of the vessel, also, we think that the decree below should be affirmed. The vessel contends that cargo owners should bear the expense of discharging the cargo at Norfolk because of the provisions of paragraph 11 of the bill of lading, the pertinent portion of which is as follows:
“In the event of war or hostilities existing or threatened, the goods shall at all times be at the sole risk of the owners thereof of arrest, restraint, capture, seizure, detention or interference of any sort by any power; and the carrier and its representatives are privileged in their absolute discretion, if deemed advisable for the protection of the vessel or of any cargo or to avoid loss, damage, delay, expense, danger, either with or without proceeding to or toward the port of discharge or entering or attempting to enter or discharge the goods there, and whether such entry or discharge be permitted or not, to proceed to or remain at any other port or ports, including the port of shipment, once or oftener in any order or rotation retaining the goods on board or discharging the same at the risk and expense of the owners thereof at such port or ports at the first or. any subsequent call, and full freight and all other charges shall be paid by shipper, consignee, and/or owner, and the goods shall be subject to a lien therefor”.
The vessel, however, did not proceed under this clause of the bill of lading. She refused to discharge the cargo or to deliver it to the owners until ordered to do so by the court below; and the court ordered the delivery on the ground that the venture had been frustrated by war and that the owners were entitled to the possession of the cargo. Whose duty, then, was it to make delivery? If the goods had been carried to London, no question is made that both under the terms of the bills of lading and under the provisions of the Carriage of Goods by Sea Act that duty rested upon the vessel. Is the duty any less because war conditions have absolved her from making a portion of the voyage for which she has been paid? We think not. As pointed out by the court below, there is no showing that it would cost the vessel any more to discharge at Norfolk than at London, and there certainly is no reason to think that the cost of discharge at Norfolk is as great as the cost of discharge at London plus the cost of transportation across the ocean, of which the vessel has been relieved. In such situation, it is not unreasonable, we think, to require the vessel to bear the cost of unloading and thus to carry out to the extent of her ability the obligation which she has undertaken.
And we think that the burden of unloading in such situation is imposed upon the vessel and her owners by a reasonable interpretation of the provision of the war risk clause of the time charter quoted in the bill of lading. That clause is as follows :
“No bills of lading to be signed for any blockaded port and if the port of discharge be declared blockaded after bills of lading have been signed, or if the port to which the ship has been ordered to discharge either on signing bills of lading or thereafter be one to which the ship is or shall be prohibited from going by the government of the nation under whose flag the ship sails or by any other government, the owner shall discharge the cargo at any other port covered by the charter party as ordered by the charterers (provided such other port is not a blockaded or prohibited port as above mentioned) and shall be entitled to freight as if the ship had discharged at the port or ports of discharge to which she was originally ordered.” (Italics supplied.)
Here the vessel was prohibited from going to the port of discharge named in the bill of lading by the government of the nation under whose flag she was sailing. She was in a port covered by the charter. While the discharge was not ordered by the charterers, it was ordered by the court on motion of the cargo owners, who stood in the shoes of the charterers in so far as the duty of the vessel and her owners to discharge cargo was concerned. No authority is cited as to why the vessel should not bear the burden of discharging the cargo under such circumstances, and we know of none. On the contrary, we think that the spirit, if not the letter of the contract of carriage, places that burden upon the vessel and that in equity and good conscience that is where it belongs.
For the reasons stated, the decree appealed from will be affirmed both on the appeal and the cross appeal.
Affirmed.
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:
|
sc_petitioner
|
055
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
Curtis Giovanni FLOWERS, Petitioner
v.
MISSISSIPPI
No. 17-9572
Supreme Court of the United States.
Argued March 20, 2019
Decided June 21, 2019
Sheri Lynn Johnson for the petitioner.
Special Assistant Attorney General Jason Davis for the respondent.
Sheri Lynn Johnson, Counsel of Record, Keir M. Weyble, Cornell Law School, Ithaca, NY, Alison Steiner, Office of the State Public, Defender Capital Defense, Counsel Division, Jackson, MS, for petitioner.
Jim Hood, Attorney General, State of Mississippi, Jason Davis, Counsel of Record, Special Assistant Attorney General, Brad Smith, Special Assistant Attorney General, Office of the Attorney General, Jackson, MI, for respondent.
Justice KAVANAUGH delivered the opinion of the Court.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.
In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.
In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to "numerous instances of prosecutorial misconduct." Flowers v. State, 773 So.2d 309, 327 (2000). In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial. In the third trial, Flowers was convicted, but the Mississippi Supreme Court yet again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process. The court's lead opinion stated: "The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge." Flowers v. State, 947 So.2d 910, 935 (2007). The opinion further stated that the "State engaged in racially discriminatory practices during the jury selection process" and that the "case evinces an effort by the State to exclude African-Americans from jury service." Id., at 937, 939.
The fourth and fifth trials of Flowers ended in mistrials due to hung juries.
In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors. On appeal, Flowers argued that the State again violated Batson in exercising peremptory strikes against black prospective jurors. In a divided 5-to-4 decision, the Mississippi Supreme Court affirmed the conviction. We granted certiorari on the Batson question and now reverse. See 586 U. S. ----, 139 S.Ct. 451, 202 L.Ed.2d 346 (2018).
Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck-a statistic that the State acknowledged at oral argument in this Court. Tr. of Oral Arg. 32. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.
We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State's peremptory strike of black prospective juror Carolyn Wright was not "motivated in substantial part by discriminatory intent." Foster v. Chatman, 578 U. S. ----, ----, 136 S.Ct. 1737, 1754, 195 L.Ed.2d 1 (2016) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.
We reverse the judgment of the Supreme Court of Mississippi, and we remand the case for further proceedings not inconsistent with this opinion.
I
The underlying events that gave rise to this case took place in Winona, Mississippi.
Winona is a small town in northern Mississippi, just off I-55 almost halfway between Jackson and Memphis. The total population of Winona is about 5,000. The town is about 53 percent black and about 46 percent white.
In 1996, Bertha Tardy, Robert Golden, Derrick Stewart, and Carmen Rigby were murdered at the Tardy Furniture store in Winona. All four victims worked at the Tardy Furniture store. Three of the four victims were white; one was black. In 1997, the State charged Curtis Flowers with murder. Flowers is black. Since then, Flowers has been tried six separate times for the murders. In each of the first two trials, Flowers was tried for one individual murder. In each subsequent trial, Flowers was tried for all four of the murders together. The same state prosecutor tried Flowers each time. The prosecutor is white.
At Flowers' first trial, 36 prospective jurors-5 black and 31 white-were presented to potentially serve on the jury. The State exercised a total of 12 peremptory strikes, and it used 5 of them to strike the five qualified black prospective jurors. Flowers objected, arguing under Batson that the State had exercised its peremptory strikes in a racially discriminatory manner. The trial court rejected the Batson challenge. Because the trial court allowed the State's peremptory strikes, Flowers was tried in front of an all-white jury. The jury convicted Flowers and sentenced him to death.
On appeal, the Mississippi Supreme Court reversed the conviction, concluding that the State had committed prosecutorial misconduct in front of the jury by, among other things, expressing baseless grounds for doubting the credibility of witnesses and mentioning facts that had not been allowed into evidence by the trial judge. Flowers, 773 So.2d at 317, 334. In its opinion, the Mississippi Supreme Court described "numerous instances of prosecutorial misconduct" at the trial. Id., at 327. Because the Mississippi Supreme Court reversed based on prosecutorial misconduct at trial, the court did not reach Flowers' Batson argument. See Flowers, 773 So.2d at 327.
At the second trial, 30 prospective jurors-5 black and 25 white-were presented to potentially serve on the jury. As in Flowers' first trial, the State again used its strikes against all five black prospective jurors. But this time, the trial court determined that the State's asserted reason for one of the strikes was a pretext for discrimination. Specifically, the trial court determined that one of the State's proffered reasons-that the juror had been inattentive and was nodding off during jury selection-for striking that juror was false, and the trial court therefore sustained Flowers' Batson challenge. The trial court disallowed the strike and sat that black juror on the jury. The jury at Flowers' second trial consisted of 11 white jurors and 1 black juror. The jury convicted Flowers and sentenced him to death.
On appeal, the Mississippi Supreme Court again reversed. The court ruled that the prosecutor had again engaged in prosecutorial misconduct in front of the jury by, among other things, impermissibly referencing evidence and attempting to undermine witness credibility without a factual basis. See Flowers v. State, 842 So.2d 531, 538, 553 (2003).
At Flowers' third trial, 45 prospective jurors-17 black and 28 white-were presented to potentially serve on the jury. One of the black prospective jurors was struck for cause, leaving 16. The State exercised a total of 15 peremptory strikes, and it used all 15 against black prospective jurors. Flowers again argued that the State had used its peremptory strikes in a racially discriminatory manner. The trial court found that the State had not discriminated on the basis of race. See Flowers, 947 So.2d at 916. The jury in Flowers' third trial consisted of 11 white jurors and 1 black juror. The lone black juror who served on the jury was seated after the State ran out of peremptory strikes. The jury convicted Flowers and sentenced him to death.
On appeal, the Mississippi Supreme Court yet again reversed, concluding that the State had again violated Batson by discriminating on the basis of race in exercising all 15 of its peremptory strikes against 15 black prospective jurors. See Flowers, 947 So.2d at 939. The court's lead opinion stated: "The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge." Id., at 935. The opinion explained that although "each individual strike may have justifiably appeared to the trial court to be sufficiently race neutral, the trial court also has a duty to look at the State's use of peremptory challenges in toto." Id., at 937. The opinion emphasized that "trial judges should not blindly accept any and every reason put forth by the State, especially" when "the State continues to exercise challenge after challenge only upon members of a particular race." Ibid. The opinion added that the "State engaged in racially discriminatory practices" and that the "case evinces an effort by the State to exclude African-Americans from jury service." Id., at 937, 939.
At Flowers' fourth trial, 36 prospective jurors-16 black and 20 white-were presented to potentially serve on the jury. The State exercised a total of 11 peremptory strikes, and it used all 11 against black prospective jurors. But because of the relatively large number of prospective jurors who were black, the State did not have enough peremptory challenges to eliminate all of the black prospective jurors. The seated jury consisted of seven white jurors and five black jurors. That jury could not reach a verdict, and the proceeding ended in a mistrial.
As to the fifth trial, there is no available racial information about the prospective jurors, as distinct from the jurors who ultimately sat on the jury. The jury was composed of nine white jurors and three black jurors. The jury could not reach a verdict, and the trial again ended in a mistrial.
At the sixth trial, which we consider here, 26 prospective jurors-6 black and 20 white-were presented to potentially serve on the jury. The State exercised a total of six peremptory strikes, and it used five of the six against black prospective jurors, leaving one black juror to sit on the jury. Flowers again argued that the State had exercised its peremptory strikes in a racially discriminatory manner. The trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes against the five black prospective jurors. The jury at Flowers' sixth trial consisted of 11 white jurors and 1 black juror. That jury convicted Flowers of murder and sentenced him to death.
In a divided decision, the Mississippi Supreme Court agreed with the trial court on the Batson issue and stated that the State's "race-neutral reasons were valid and not merely pretextual." Flowers v. State, 158 So.3d 1009, 1058 (2014). Flowers then sought review in this Court. This Court granted Flowers' petition for a writ of certiorari, vacated the judgment of the Mississippi Supreme Court, and remanded for further consideration in light of the decision in Foster, 578 U. S. ----, 136 S.Ct. 1737, 195 L.Ed.2d 1. Flowers v. Mississippi, 579 U. S. ----, 136 S.Ct. 2157, 195 L.Ed.2d 817 (2016). In Foster, this Court held that the defendant Foster had established a Batson violation. 578 U. S., at ----, 136 S.Ct., at 1755.
On remand, the Mississippi Supreme Court by a 5-to-4 vote again upheld Flowers' conviction. See 240 So.3d 1082 (2017). Justice King wrote a dissent for three justices. He stated: "I cannot conclude that Flowers received a fair trial, nor can I conclude that prospective jurors were not subjected to impermissible discrimination." Id., at 1172. According to Justice King, both the trial court and the Mississippi Supreme Court "completely disregard[ed] the constitutional right of prospective jurors to be free from a racially discriminatory selection process." Id., at 1171. We granted certiorari. See 586 U. S. ----, 139 S.Ct. 451, 202 L.Ed.2d 346.
II
A
Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process. See Powers v. Ohio, 499 U.S. 400, 407, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).
Jury selection in criminal cases varies significantly based on state and local rules and practices, but ordinarily consists of three phases, which we describe here in general terms. First, a group of citizens in the community is randomly summoned to the courthouse on a particular day for potential jury service. Second, a subgroup of those prospective jurors is called into a particular courtroom for a specific case. The prospective jurors are often questioned by the judge, as well as by the prosecutor and defense attorney. During that second phase, the judge may excuse certain prospective jurors based on their answers. Third, the prosecutor and defense attorney may challenge certain prospective jurors. The attorneys may challenge prospective jurors for cause, which usually stems from a potential juror's conflicts of interest or inability to be impartial. In addition to challenges for cause, each side is typically afforded a set number of peremptory challenges or strikes. Peremptory strikes have very old credentials and can be traced back to the common law. Those peremptory strikes traditionally may be used to remove any potential juror for any reason-no questions asked.
That blanket discretion to peremptorily strike prospective jurors for any reason can clash with the dictates of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This case arises at the intersection of the peremptory challenge and the Equal Protection Clause. And to understand how equal protection law applies to peremptory challenges, it helps to begin at the beginning.
Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." A primary objective of the Equal Protection Clause, this Court stated just five years after ratification, was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873).
In 1875, to help enforce the Fourteenth Amendment, Congress passed and President Ulysses S. Grant signed the Civil Rights Act of 1875. Ch. 114, 18 Stat. 335. Among other things, that law made it a criminal offense for state officials to exclude individuals from jury service on account of their race. 18 U. S. C. § 243. The Act provides: "No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude."
In 1880, just 12 years after ratification of the Fourteenth Amendment, the Court decided Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664. That case concerned a West Virginia statute that allowed whites only to serve as jurors. The Court held the law unconstitutional.
In reaching its conclusion, the Court explained that the Fourteenth Amendment required "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." Id., at 307. In the words of the Strauder Court: "The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." Id., at 308. For those reasons, the Court ruled that the West Virginia statute excluding blacks from jury service violated the Fourteenth Amendment.
As the Court later explained in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Court's decisions in the Slaughter-House Cases and Strauder interpreted the Fourteenth Amendment "as proscribing all state-imposed discriminations against the Negro race," including in jury service. Brown, 347 U.S. at 490, 74 S.Ct. 686.
In the decades after Strauder, the Court reiterated that States may not discriminate on the basis of race in jury selection. See, e.g., Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881) ; Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839 (1900) ; Norris v. Alabama, 294 U.S. 587, 597-599, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) ; Hale v. Kentucky, 303 U.S. 613, 616, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (per curiam ); Pierre v. Louisiana, 306 U.S. 354, 362, 59 S.Ct. 536, 83 L.Ed. 757 (1939) ; Smith v. Texas, 311 U.S. 128, 130-131, 61 S.Ct. 164, 85 L.Ed. 84 (1940) ; Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) ; Hernandez v. Texas, 347 U.S. 475, 477-478, 482, 74 S.Ct. 667, 98 L.Ed. 866 (1954) ; Coleman v. Alabama, 377 U.S. 129, 133, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964).
But critical problems persisted. Even though laws barring blacks from serving on juries were unconstitutional after Strauder, many jurisdictions employed various discriminatory tools to prevent black persons from being called for jury service. And when those tactics failed, or were invalidated, prosecutors could still exercise peremptory strikes in individual cases to remove most or all black prospective jurors.
In the century after Strauder, the freedom to exercise peremptory strikes for any reason meant that "the problem of racial exclusion from jury service" remained "widespread" and "deeply entrenched." 5 U. S. Commission on Civil Rights Report 90 (1961). Simple math shows how that happened. Given that blacks were a minority of the population, in many jurisdictions the number of peremptory strikes available to the prosecutor exceeded the number of black prospective jurors. So prosecutors could routinely exercise peremptories to strike all the black prospective jurors and thereby ensure all-white juries. The exclusion of black prospective jurors was almost total in certain jurisdictions, especially in cases involving black defendants. Similarly, defense counsel could use-and routinely did use-peremptory challenges to strike all the black prospective jurors in cases involving white defendants and black victims.
In the aftermath of Strauder, the exclusion of black jurors became more covert and less overt-often accomplished through peremptory challenges in individual courtrooms rather than by blanket operation of law. But as this Court later noted, the results were the same for black jurors and black defendants, as well as for the black community's confidence in the fairness of the American criminal justice system. See Batson, 476 U.S. at 98-99, 106 S.Ct. 1712.
Eighty-five years after Strauder, the Court decided Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The defendant Swain was black. Swain was convicted of a capital offense in Talladega County, Alabama, and sentenced to death. Swain presented evidence that no black juror had served on a jury in Talladega County in more than a decade. See id., at 226, 85 S.Ct. 824. And in Swain's case, the prosecutor struck all six qualified black prospective jurors, ensuring that Swain was tried before an all-white jury. Swain invoked Strauder to argue that the prosecutor in his case had impermissibly discriminated on the basis of race by using peremptory challenges to strike the six black prospective jurors. See 380 U.S. at 203, 210, 85 S.Ct. 824.
This Court ruled that Swain had not established unconstitutional discrimination. Most importantly, the Court held that a defendant could not object to the State's use of peremptory strikes in an individual case. In the Court's words: "[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws." Id., at 221, 85 S.Ct. 824. The Swain Court reasoned that prosecutors do not always judge prospective jurors individually when exercising peremptory strikes. Instead, prosecutors choose which prospective jurors to strike "in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried." Ibid. In the Court's view, the prosecutor could strike prospective jurors on the basis of their group affiliations, including race. In other words, a prosecutor could permissibly strike a prospective juror for any reason, including the
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_applfrom
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Pitt Tyson MANER, Jr., Defendant-Appellant, v. Ingela Idfors MANER, Plaintiff-Appellee.
No. 26267.
United States Court of Appeals Fifth Circuit.
May 13, 1969.
R. Lea Harris, Montgomery, Ala., for defendant-appellant.
Jack Crenshaw, Crenshaw & Waller, Montgomery, Ala., for appellee.
Before RIVES, BELL and DYER, Circuit Judges.
RIVES, Circuit Judge:
Pitt Tyson Maner, Jr. appeals from a judgment of $11,933.83'rendered against him in the Middle District of Alabama. This appeal is the latest litigatory event in a lengthy dispute over separate maintenance awards in favor of Maner’s ex-wife, Ingela Idfors Maner.
Mrs. Maner’s prior suits to enforce the Florida separate maintenance decrees failed because of her failure to reduce the Florida awards to non-modifiable judgments in an amount sufficient to invoke the federal court’s diversity jurisdiction. See 28 U.S.C. § 1332. However, the prior failures were “without prejudice to [her] presenting a subsequent claim based on final judgments from a Florida court.” Maner v. Maner, 302 F.Supp. 894 [M.D.Ala., May 1,1968]. It is undisputed that on February 2, 1968 a Florida circuit court granted Mrs. Maner final judgment on separate maintenance arrearages in the amount of $5,-949.83. This judgment was “in addition to and not a part of” the June 19, 1967 Florida circuit court judgment of $5,-984.00. The district court consequently found:
“On the basis of the Florida judgments entered by a court with personal jurisdiction over the parties and jurisdiction over the martial [sic] res, defendant is indebted to the plaintiff in the amount of $11,933.83. There is no dispute as to any material fact in this cause.
“This Court has jurisdiction over the subject matter and over the parties to this action. 28 U.S.C. § 1332. The judgments now sued on are final judgments within the meaning of Art. IV, § 1 of the Constitution of the United States and as such are entitled to full faith and credit and should be enforced by this court. Plaintiff is entitled to judgment as a matter of law.”
The broad question raised on this appeal is whether the district court properly gave full faith and credit to these Florida money judgments. We find .appellant’s challenges legally insufficient and affirm.
I.
Appellant raises the question of finality by arguing, first, that the latest circuit court judgment is on appeal and, second, that separate maintenance awards are inherently non-final and unenforceable under the Full Faith and Credit Clause. Even if an appeal is presently being prosecuted from the circuit court decree, the pendency of such an appeal does not necessarily render non-final a judgment which would otherwise be enforceable under the doctrines of comity or full faith and credit. Under the current Florida practice, a judgment is non-final for enforcement purposes only when an appellant files a supersedeas bond. The record indicates that Mrs. Maner duly recorded the judgment in question and that appellant failed to file a supersedeas bond. The judgment therefore is enforceable notwithstanding the pendency of the appeal. Since the judgment is final for purposes of execution in the state of its rendition, comity compels us to hold that it can be regarded no less than final in Alabama.
The second finality argument urged by appellant is equally unpersuasive. Another panel of this Court said in a prior appeal in this litigation:
“In regard to the enforcement of the Florida alimony decree with respect to installments previously due but unpaid, the full faith and credit clause, Const., Art. IV, § 1, normally would require Alabama courts to enforce that decree unless it were subject to retroactive modification in the state where it was entered. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682 [54 L.Ed. 905] (1910).”
Maner v. Maner, 401 F.2d 616, 618 (1968). That panel found it unnecessary to determine the question it begged: whether, under Florida law, accrued installment payments are subject to such retroactive modification as would vitiate a foreign suit on the judgment. Although we note that Florida courts generally hold that separate maintenance payments are vested rights not subject to modification, we also find it unnecessary to determine this elusive question of Florida law since Mrs. Maner has reduced the accrued payments to a judgment for a sum certain.
We find no substantial support either in statute or case law for the proposition that a Florida court can modify such a judgment. We, therefore, find that the latest Florida circuit court judgment is final and entitled to enforcement under the doctrine of full faith and credit.
II.
Appellant collaterally attacks the jurisdiction of the Florida circuit court upon whose judgments Mrs. Maner is presently suing. Specifically, appellant argues that the lack of personal service upon himself obviates enforcement of those judgments in Alabama. We find appellant’s argument untenable and hold that the Florida judgments are entitled to enforcement under the Full Faith and Credit Clause.
The record indicates that although Pitt Tyson Maner, Jr. was not personally served with process in the arrearage proceedings, he was apprised of the proceedings and was therein represented by retained counsel. Under Florida law; enforcement of alimony decrees can be had on “reasonable notice which affords an opportunity to be heard.” Kosch v. Kosch, 118 So.2d 547, 550 (Fla.1959). We hold that the arrear-age judgments of June 19, 1967 and February 2, 1968 do not offend Florida’s doctrine of fair notice. Id., Accord: Prensky v. Prensky, 146 So.2d 604, 605 (Fla.App.1962); Arrington v. Brown, 116 So.2d 461, 462 (Fla.App.1959). Consequently, we find that the district court correctly held that the judgments are entitled to enforcement.
Affirmed.
. The factual background of this dipute is reported sub nom. Maner v. Maner, 279 Ala. 652, 189 So.2d 336 (1966); Maner v. Maner, 302 F.Supp. 894 [M.D.Ala., May 1, 1968]; Maner v. Maner, 5 Cir. 1968, 401 F.2d 616. We are told by supplemental papers filed in this appeal that the parties are now divorced under Alabama law.
. Mrs. Maner’s brief contains an uncerti-fied copy of a dismissal of the appeal from the latest circuit court judgment. Nonetheless, we proceed on the basis of what is told to us by the record: that an appeal is still pending.
. 31 F.S.A. Rule 1.550 (Fla.R.Civ.P. 1967); 32 F.S.A. Rules 5.5, 5.2 (Fla.R. Appellate P. 1967); Jenkins Trucking, Inc. v. Emmons, 207 So.2d 280 (Fla.App.1968), cert. den. 210 So.2d 867 (Fla.1968). See generally, Annot. 5 A.L.R. 1269 (1920). Cf. Bros., Inc. v. W. E. Grace Manufacturing Co., 5 Cir. 1958, 261 F.2d 428, 433 n. 4.
. See, e. g., English v. English, 117 So.2d 559 (Fla.App.1960); Goff v. Goff, 151 So.2d 294 (Fla.App.1963).
. Cf. 4 F.S.A. § 61.14 (1969 Supp.); Adam v. Saenger, 1938, 303 U.S. 59, 62, 58 S.Ct. 454. 82 L.Ed. 649 (Judgment is prima facie evidence of right which it purports to adjudicate).
. U.S.Const., Art. IV, § 1; 28 U.S.C.A. § 1738 (1967); Barber v. Barber, 1944, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82. Cf. 4 F.S.A. § 61.14, n. 6 (1969 supp.)
Appellant also questions the propriety of the lump sum determination of the district court. We regard this contention as frivolous and merely note that this appeal is from a judgment of debt, not from an equity decree of domestic relations.
. The Florida standard for notice of proceedings to enforce alimony decrees does not offend the due process clause of the Fourteenth Amendment. Repeated personal service is not an essential element of due process in post-decree enforcement proceedings. See Michigan Trust Co. v. Ferry, 1913, 228 U.S. 346, 353, 33 S.Ct. 550, 57 L.Ed. 867. Cf. Griffin v. Griffin, 1946, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635; Nations v. Johnson, 65 U.S. (24 How.) 195, 204-205, 16 L.Ed. 628; Reichert v. Appel, 74 So.2d 674, 676 (Fla. 1954).
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
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
WILLETT MFG. CO. et al. v. ROOT SPRING SCRAPER CO. DEAN et al. v. WEEKS et al.
Nos. 5907, 5908.
Circuit Court of Appeals, Sixth Circuit.
Feb. 5, 1932.
Frank E. Liverance, Jr., of Grand Rapids, Mich. (Harold O. Van Antwerp, of Grand Rapids, Mich., on the brief), for Willett Mfg.* Co.
Fred L. Chappell, of Kalamazoo, Mich. (Chappell & Eai*l, of Kalamazoo, Mich., on the brief), for Root Spring Scraper Co. et al.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
HICKENLOOPER, Circuit Judge.
No. 5907 is an appeal from a decree of the District Court finding claim 4 of patent No. 1,750,610, issued March 11, 1930', upon application of Ernest A. Weeks, valid and infringed. In No. 5908, the complainant below, the defendant in the infringement suit, appeals from a decree refusing to “adjudge that such applicant is entitled, according to law, to receive a patent” (Rev. St. § 4915, 35 TJ. S. C. § 63 [35 USCA § 63]) for the combination set forth in certain broad generic claims which had been the subject of interference proceedings in the Patent Office, and which are sufficiently described by saying that they cover all use of hydraulic means for raising or lowering the blade of a road scraper. We first dispose of cause No. 5908,
A large portion of the record and much of the briefs are devoted to questions of priority of invention as between the parties to the interference, reduction to practice, carrying the date of invention back to the date of conception, application of the doctrine of Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657, and related matters. These are interesting questions, but their decision is unnecessary in the instant case. The use of mechanical means for raising or lowering the blade of a road scraper is almost as old as the use of such scrapers. Invention may he exercised in devising a specific form of hydraulic moans for accomplishing this end, just as in improving the mechanical means for doing so; but merely substituting hydraulic, pneumatic, or electrical means t'or the former manually operated mechanical means, is hut the substitution of one well-recognized source of power for another, and ordinarily is not broadly patentable. An exercise of the inventive faculty is not required to conceive, without more, that such substitution may be made. Tom Houston Mfg Co. v. Clyde Iron Works, 32 F.(2d) 558 (C. C. A. 6).
It is true that where the availability of the old device to use in the new environment is not obvious, either because of intrinsic differences in the quality of the operation to be performed, or because the relationship between the two arts or fields of use is remote, invention may he found in the mere concept of such availability to useful service in the new and different environment (Herman v. Youngstown Car Mfg. Co., 191 F. 579 (C. C. A. 6); and compare National Cash Register Co. v. Boston Cash Indicator Co., 156 U. S. 502, 514, 15 S. Ct 434, 39 L. Ed. 511); but this principle is inapplicable here. The field of use is essentially the same whether the work performed be raising an elevator, a dump truck body, or a scraper blade. In this sense the relationship between the arts is not remote. Choice of one or another of the available types of power, apart from the specific means by which such power unit is adapted to the new use, is well within the domain of selection open to the public. Beck-Frost Corp. v. Ford Motor Car Co., 44 F.(2d) 519 (C. C. A. 6). The validity of the patent must then depend upon the existence of a true combination in the specific means disclosed; and an exercise of the inventive faculty is to be found, if at all, in the changes in the old device necessary to adapt it to the new use, and which therefore and thereby produce the new combination. Potts v. Creager, 155 U. S. 597, 606, 15 S. Ct. 194, 39 L. Ed. 275; Kendall v. Trico Products Corp., 31 F.(2d) 522, 524 (C. C. A. 6). Since a valid patent could not issue for the generic claims in interference, the complainant in the District Court was rightly denied relief under Rev. St. § 4915. The court will not perform a wholly vain act. This decree is affirmed.
Passing to appeal No. 5907, it is at once apparent from what we have said that claim 4 cannot he given a broad generic construction. From the very nature of the inventive step the patentee is entitled to hut a comparatively narrow range of equivalents: Doubtless a claim which is susceptible to so broad a construction as to invalidate it may often he saved from invalidity by limiting it to substantially the structure disclosed by the specification; hut even in such case the mode of operation, the means by which the broad generic principle is operatively applied, is of controlling importance. Cf. Merit Oil Equipment Co. v. Fry Equipment Corp., 48 F.(2d) 488 (C. C. A. 6), and Directoplate Corp. v. Donaldson Lithographing Co., 51 F.(2d) 190 (C. C. A. 6).
Applying this thought to the ease at bar, if the patentee be not entitled to claim a monopolistic right in the use of all hydraulic means for raising or lowering the scraper blade (and such hydraulic means would include a hydraulic cylinder with double-acting piston, pump, motor, connections, etc., for these are the customary devices for applying hydraulic power)., and if the inventive step is to be found only in the association of the several elements which, in the environment of such power unit, is new, the defendant cannot be held to infringe unless he has appropriated the substance of that invention ; unless the elements which give novelty to the combination, or their substantial equivalents, are also found in the defendant’s device.
The patent in suit discloses a combination of operating elements which for the purposes of this opinion we assume to be new and useful, and to evidence invention. These elements are a reversible electric motor, a rotary pump, a shut-off valve at one end of the hydraulic cylinder, and a switch in the cab, which, as a single moving part/controls both the shut-off valve and the motor, and therefore also the pump. Defendant’s device operates upon a substantially different principle. The motor is not reversible, and the pump is constructed and adapted to drive the fluid only in one direction. The flow of the oil to one end or the other of the hydraulic cylinder is controlled by a four-way valve manually operated from the cab, and separate from the switch which controls the motor. It is true that each device has a hydraulic cylinder, an electric motor, a pump, and a valve or valves which shut off the cylinder to hold the blade in the desired position, but these elements are all inherent in the very, use of every hydraulic power unit. They are not new in the environment of such a power unit. They add nothing to the novelty of association of elements. The elements which we are assuming were combined for the first time in the device of claim 4 are absent from defendant’s mechanism. The claim may read, literally, upon the defendant’s device, but to save it from invalidity it must be read in the light of the specification as calling for those elements which alone would give it novelty; and, when so read, it is' not infringed.
The District Judge was of the opinion that the unidirectional pump and motor and four-way valve of the", defendant were the mechanical equivalents of the patentee^ reversible motor and pump and his shut-off valve. That both combinations accomplish, the same function of raising and lowering the scraper blade by hydraulic means cannot be denied, but, as we have said, neither this result nor the use of hydraulic means, as such, was patentable. This was to give entirely too broad a meaning to the term “equivalent,” which should not be held to include that which operates in a substantially different manner as well as being substantially different in structural characteristics. Burr v. Duryee, 1 Wall. 531, 572, 17 L. Ed. 650; Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 568, 18 S. Ct. 707, 42 L. Ed 1136; Directoplate Corp. v. Donaldson Lithographing Co., supra.
It follows that the decree of the District Court (Appeal No. 5907) must be reversed and the cause is remanded, with instructions to dismiss the bill on the ground of noninfringement.
No. 5907, reversed; No. 5908, affirmed.
“4. In an actuating means for road scrapers, tile combination of a rocksbaft, a scraper carried thereby, a hydratilic cylinder with double acting piston, connections from the said piston for operating the said rockshaft, a geared power pump connected to and associated with the said cylinder, an electric motor connected with said power pump, a switch moans in the cab for controlling the said motor, a shut off means for the said hydraulic cylinder to cut off the cylinder when the motor is stopped, as specified.”
The specification describes the operation of these parts as follows: ‘‘.When it [the switch] is moved to either forward or reverse the valve is opened so that the pump can drive the oil from one end of the cylinder 12 to the other and actuate the piston to control the scraper. Automatically the. valve is closed when the current is cut off and the pressure is maintained in the left-hand end of the hydraulic cylinder,” thus holding the blade in place.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
SOUTHWESTERN PORTLAND CEMENT CO. et al. v. SIMPSON.
No. 2654.
Circuit Court of Appeals, Tenth Circuit.
April 30, 1943.
Rehearing Denied and Opinion Modified June 19, 1943.
Pierce Rodey, of Albuquerque, N. M. (Rodey, Dickason & Sloan, of Albuquerque, N. M., on the brief), for appellants.
Edwin L. Swope, of Albuquerque, N. M. (W. A. Keleher and Theo. E. Jones, both of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
PHILLIPS, Circuit Judge.
Alice E. Simpson commenced this action against the Southwestern Portland Cement Company in a district court of the state of New Mexico to recover benefits under the New Mexico Workmen’s Compensation Act for the death of her husband, John E. Simpson. The action was removed to the United States District Court. From a judgment in favor of the claimant, the Cement Company has appealed.
In its answer the Cement Company set up two defenses (1) that Simpson’s injuries were not caused by an accident arising out of and in the course of his employment, and (2) that Simpson’s injuries were occasioned by intoxication and were, therefore, not compensable under the Act.
The issue raised by the first defense was submitted to the jury by special interrogatory No. 1, reading: “At the time of the accident in which the decedent, John Ernest Simpson, met his death, was he performing services arising out of and in the course of his employment?” The jury answered in the affirmative.
The evidence with respect to the issue raised by the first defense is free from substantial conflict and it established these facts:
John E. Simpson was employed by the Cement Company as a cement salesman from February, 1936, until his death on September 5, 1941. He resided at Albuquerque, New Mexico. His sales territory was a section of the state of New Mexico. In performing his duties as salesman, he traveled in a Chevrolet automobile furnished by the Cement Company. His duties consisted mainly of soliciting cement purchases from dealers and contractors. He was not required to observe fixed hours of employment or a fixed schedule of travel. He was free to exercise his own judgment and discretion in covering his territory. He was a competent and successful salesman. He received a salary of $260 per month. The Cement Company reimbursed him for traveling expenses, for maintenance while away from home, and for expenditures incurred for meals, liquors and other entertainment furnished prospective customers at hotels and night clubs.
As a part of his duties, Simpson was required to attend “highway lettings,” which occurred from time to time in Santa Fe, New Mexico, where the New Mexico State Highway Department received competitive bids from contractors for highway construction jobs and awarded contracts. The contractors and salesmen of products used in highway construction work usually assembled the day before the actual award of the contract at the La Fonda and De Vargas Hotels in Santa Fe. The contractors, with the assistance of the salesmen, prepared their bids and both contractors and salesmen attended the actual “letting” on the following day. Most of the salesmen .and contractors congregated at the La Fonda. The salesmen gave the contractors prices on products, freight rates, and other data, and otherwise assisted the contractors in preparing their bids. During the afternoon and night preceding a “letting” there was much social intercourse and drinking of intoxicating liquor. From about noon of the day preceding the “letting” until the bids were received and the contract awarded, the salesmen were constantly on duty. Competition between salesmen was keen and it was a general practice for salesmen to withhold their final price quotations as long as possible. It was not unusual when the bar closed at the La Fonda at midnight for the contractors and salesmen to go to night clubs in and near Santa Fe and there continue their negotiations and their social intercourse. One of these night clubs was known as the Trianon.
Simpson was required to be on duty at Santa Fe from about noon of the day before a “letting” until the contract was awarded on the following day. He was also expected to attend the Highway Department session at which the contracts were let. Simpson’s primary object in attending the “lettings” was to sell cement to the successful bidder. But it was also part of his duties to promote future sales to other contractors, by assisting them in preparing their bids, furnishing them with cement prices, freight rates, and other data, and by generally creating and fostering their good will toward the Cement Company.
On September 5, 1941, a highway “letting” was to be held in Santa Fe. Salesmen, contractors, and others arrived the day before. Most of them gathered at the La Fonda. On September 4, Simpson left his home in Albuquerque, after telling his wife he was going to Santa Fe to attend a “letting.” He took his typewriter, suitcase, and a brief case containing data respecting cement and freight rates and also blank contracts. He arrived at the La Fonda in Santa Fe about 1 P. M., September 4, and engaged a room. Thereafter, he appeared in the lobby of the hotel and began talking business with prospective customers. He spent the entire day and evening in the hotel fraternizing with the contractors and other salesmen, talking, drinking, and eating with them. Between S P. M. and IIP. M., he had dinner in the New Mexican Room of the La Fonda. A contractor and another salesman were seated with him at the same table. Other tables were occupied by other contractors and salesmen. The salesmen and contractors moved from one table to another and carried on business negotiations. Simpson spent his evening eating his meal and mingling with the other parties present.
Between 10:30 P. M. and 11 P. M., Simpson joined Henry Thygesen, an important contractor, who had been awarded several highway contracts, James Ryan, another contractor, Roy Doty, a salesman and several others in the cocktail room. This group broke up a short time later and Simpson went to the hotel lobby. At 12:20 A. M., September 5, Doty saw Simpson in the lobby talking to three Indians who were apparently attempting to sell him some jewelry. Simpson asked Doty if he wanted to go to the Trianon with him, and Doty replied that he was going to bed. Simpson stated that he intended to remain in the lobby until some one came along who desired to go to the Trianon.
It had been Simpson’s practice theretofore to contact and entertain contractors at the Trianon and there continue his efforts to promote cement sales.
At about 6:30 on the morning of September 5, 1941, Simpson was found dead in his automobile which was impacted against a comer of a building near U. S. Highway 85. His death was caused by a fractured skull and a broken leg. The automobile tracks indicated that the automobile was traveling in a southerly direction when it left the highway on the left hand side. The right front tire on the automobile was partially flat. The building where the accident occurred is located about one and a half miles south of Santa Fe and about a block and a half south of the Trianon. There was another night club south of the point where the accident occurred. Simpson’s brief case, containing cement data, was found in the automobile. A typewriter, a brief case, and an unpacked Gladstone hag were found in his hotel room. His bed had not been slept in. There was no direct evidence as to what Simpson did between 12:20 A. M. and the time of the accident on the morning of September 5.
At the close of all the evidence, the Cement Company interposed a motion for a directed verdict in its behalf. The motion was denied. The trial court, in part, instructed the jury as follows: “If you find in this case that at the time of the accident, Ernest Simpson, was on his way home from a trip made for and in the interests of his employer, then you will conclude that Ernest Simpson’s death arose out of and in the course of his employment. * * * ”
Counsel for the Cement Company excepted thereto on the ground that there was no evidence warranting the jury in finding that Simpson was on his way to his home in Albuquerque at the time of the accident.
The Cement Company also excepted to the refusal of the court to give its requested special interrogatory No. 2, reading: “Were the injuries resulting in the death of John Ernest Simpson caused by an accident arising out of and in the course of his employment?”
Section 57-906, N.M.S.A.1941, provides as prerequisites to the right to compensation that (1) the injury to or death of the employee shall be proximately caused by an accident arising out of and in the course of his employment, and (2) that at the time of the accident the employee shall be performing services arising out of and in the course of his employment.
It is well settled that where a salesman suffers a highway accident while traveling by automobile to or from a place where his duties require him to go, the accident arises out of and in the course of his employment.
The burden was upon the claimant to establish by evidence that Simpson’s death was proximately caused by an accident arising out of and in the course of his employment and that the accident occurred while performing services arising out of and in the course of his employment. But when she introduced proof of facts raising a natural and reasonable inference that the accident arose out of and in the course of his employment and occurred when Simpson was performing services arising out of and in the course of his employment, the burden then rested upon the Cement Company, it having denied those facts, to show the contrary.
Where there is substantial evidence that the death of an employee resulted from accident and that the accident occurred during his hours of work, at a place where his duties required him to be, or where he might properly have been in the performance of such duties, the jury or other trier of the issues of fact may reasonably conclude therefrom, as a natural inference, that the accident arose out of and in the course of the employment. In some of the decided cases the statement will'be found that such facts, when proven, create a presumption that the accident arose out of and in the course of the employment. However, since the burden is on the claimant to prove that the accident arose out of and in the course of the employment, either by direct evidence or evidence from which those facts may be legitimately inferred, we think the presumption referred to is not a legal presumption, but one of fact, that is, a natural inference drawn from proven facts.
Where a salesman while traveling in an automobile suffers an accidental death, during his hours of work and at a place where the performance of his duties may reasonably have .required him to go, there is a natural inference that the accident arose out of and in the course of his employment.
Simpson arrived in Santa Fe about 1 P. M., September 4, 1941. From the time of his arrival at Santa Fe until the bids were opened and the contract awarded about 11 A. M. on the following day, he was required to remain on duty. His duties were to make contacts with contractors, to furnish them with cement quotations, freight rates, and other pertinent data, to assist them in making out their bids, and to foster their good will by social entertainment. It was incumbent upon him to make and maintain these contacts wherever the contractors gathered at hotels, night clubs, or elsewhere. It was customary for the contractors, after the La Fonda bar closed, to go to the Trianon and other night clubs. Simpson was found dead in an automobile furnished him by the Cement Company at a point a short distance from the Trianon. It had been Simpson’s practice to contact contractors at the Trianon and he told Doty he was going there on the night of the accident. While the automobile was traveling away from the Trianon and in the direction of Albuquerque at the time of the accident, another night club was situated a short distance from the Trianon in the direction in which the automobile was traveling at the time of the accident. Thus, it will be seen the evidence established that the accident occurred while Simpson was traveling in the automobile furnished him by the Cement Company during the hours he was required to be on duty and where he might properly have been in the performance of his duties in making and maintaining contacts with the contractors.
From the foregoing facts, the jury, under proper instructions, might have •drawn the inference that Simpson’s death was proximately caused by an accident arising out of and in the course of his employment and that such accident occurred while he was performing services arising out of and in the course of his employment.
However, the court in effect instructed the jury that it might find from the evidence that Simpson at the time of the accident was on his way home from Santa Fe, where he had been in the performance of his duties, and conclude therefrom that the accident arose out of and in the course of the employment. At the time of the accident Simpson was traveling on the Santa Fe-Albuquerque highway in the direction of Albuquerque. Aside from that fact, there is nothing in the evidence indicating in the slightest degree that he was returning to Albuquerque. The accident occurred a short distance from Santa Fe, where Simpson’s duties required him to be. He had engaged a room at the La Fonda. He left his traveling effects in the room. His duties required him to be in Santa Fe and to remain there until the bids were opened and the contract awarded on September 5. Had he returned to Albuquerque in the early morning of September 5, it would have been necessary for him almost immediately to turn around and return to Santa Fe. The evidence disclosed no reason for him to return to Albuquerque. Every known reason impelled him to remain in Santa Fe. To draw the conclusion that he was on his way to Albuquerque at the time of the accident would be illogical and “Unreasonable under the evidence. Such a conclusion would rest on mere surmise or conjecture. We accordingly conclude that the court erred in giving the quoted instruction.
Special interrogatory No. 1 also should have covered both prerequisites to the righ-t to compensation set forth in § 57-906, supra.
The judgment is reversed and the cause remanded with instructions to grant the Cement Company a new trial on the issues raised by the first defense.
BRATTON, Circuit Judge, is of the opinion that the judgment should be affirmed.
Hereinafter called the claimant.
Hereinafter called the Cement Company.
§§ 57-901 to 57-932, N.M.S.A. 1941.
The second defense was predicated on § 57-908, N.M.S.A.1941, which provides that no compensation shall become due or payable from any employer for injuries or death “occasioned by the intoxication of” the employee. It was submitted to tbe jury by special interrogatory No. 3, reading: “Were the injuries suffered by the decedent, John Ernest Simpson, resulting in his death occasioned by his intoxication?” The jury answered in the negative. Counsel for the Cement Company admit that the jury’s special verdict is supported by substantial evidence and that it is concluded thereby on this appeal.
Ætna Life Insurance Company v. Schmiedeke, 192 Wis. 574, 213 N.W. 292, 293; New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786, 789, 790; Cook’s Case, 243 Mass. 572, 137 N.E. 733, 735, 29 A.L.R. 114; Empire Health & Accident Ins. Co. v. Purcell, 76 Ind.App. 551, 132 N.E. 664, 666; United States Casualty Co. v. Superior Hardware Company, 175 Wis. 162, 184 N.W. 694, 695; Schroeder & Daly Co. v. Industrial Commission, 169 Wis. 567, 173 N.W. 328, 329; Capital Paper Co. v. Conner, 81 Ind.App. 545, 547, 144 N.E. 474, 475; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128, 131.
Wishcaless v. Hammond, Standish & Co., 201 Mich. 192, 166 N.W. 993, 995; Papinaw v. Grand Trunk R. Co. of Canada, 189 Mich. 441, 155 N.W. 545, 547; Grant v. Glasgow Ry. Co., 1 B.W.C.C. 17.
Saunders v. New England Collapsible Tube Co., 95 Conn. 40, 110 A. 538, 539; Owens v. Ocean Forest Club, 196 S.C. 97, 12 S.E.2d 839, 841, 842; Capital Paper Co. v. Conner, 81 Ind.App. 545, 144 N.E. 474, 475; Flucker v. Carnegie Steel Co., 263 Pa. 113, 106 A. 192, 194; American Mutual Liability Ins. Co. v. Hardy, 36 Ga.App. 487, 137 S.E. 113, 114, 115; Standard Acc. Ins. Co. v. Kiker, 45 Ga.App. 706, 165 S.E. 850, 851; Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N.W. 631.
Czuczko v. Golden-Gary Co., Inc., 94 Ind.App. 47, 177 N.E. 466, 467, 179 N.E. 19; Progress Laundry Co. v. Cook, 101 Ind.App. 235, 198 N.E. 807, 808; Fisher v. City of Decatur, 99 Ind.App. 667, 192 N.E. 844, 845; Tully v. Gibbs & Hill, Inc., 171 A. 313, 314, 12 N.J. Misc. 275; Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504, 506, 120 A.L.R. 677.
Nardone v. Public Service Electric & Gas Co., 113 N.J.L. 540, 174 A. 745, 750; Dietz v. Eagle Grocery Co., 184 A. 216, 218, 14 N.J..Misc. 240.
See Owens v. Ocean Forest Club, 196 S.C. 97, 12 S.E.2d 839, 841; Standard Acc. Ins. Co. v. Kiker, 45 Ga.App. 706, 165 S.E. 850, 851; Capital Paper Co. v. Conner, 81 Ind.App. 545, 144 N.E. 474, 475; Saunders v. New England Collapsible Tube Co., 95 Conn. 40, 110 A. 538, 539, 540; and cases cited in Note 6, ante.
Henry v. D. A. Odell Motor Car Co., 191 Minn. 92, 253 N.W. 110, 112; Keeler v. Sears, Roebuck & Co., 121 Conn. 56, 183 A. 20, 22; Beaver v. George W. Boyd Co., 106 Pa.Super. 24, 161 A. 900, 903; Swift & Co. v. Industrial Commission, 350 Ill. 413, 183 N.E. 476, 478; Note, 120 A.L.R. p. 688.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
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sc_partywinning
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
YOUNG et al. v. HARPER
No. 95-1598.
Argued December 9, 1996
Decided March 18, 1997
Sandra D. Howard, Assistant Attorney General of Oklahoma, argued the cause for petitioners. With her on the briefs were W. A. Drew Edmondson, Attorney General, and Jennifer B. Miller, Assistant Attorney General.
Margaret Winter, by appointment of the Court, 518 U. S. 1015, argued the cause for respondent. With her orí the brief were Marjorie Rifkin, Elizabeth Alexander, Micheál Salem, and Steven R. Shapiro.
A brief of amici curiae urging reversal was filed for the State of Nevada et al. by Frankie Sue Del Papa, Attorney General of Nevada, and Anne Cathcart, Senior Deputy Attorney General, joined by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, Gale A. Norton of Colorado, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Joseph P. Mazurek of Montana, and Dennis C. Vacco of New York.
Justice Thomas
delivered the opinion of the Court.
This case presents the narrow question whether a program employed by the State of Oklahoma to reduce the overcrowding of its prisons was sufficiently like parole that a person in the program was entitled to the procedural protections set forth in Morrissey v. Brewer, 408 U. S. 471 (1972), before he could be removed from it. We hold that the program, as it appears to have been structured at the time respondent was placed on it, differed from parole in name alone, and affirm the decision of the Court of Appeals for the Tenth Circuit.
I
As pertinent to this case, Oklahoma operated two programs under which inmates were conditionally released from prison before the expiration of their sentences. One was parole, the other was the Preparóle Conditional Supervision Program (preparóle or Program). The Program was in effect whenever the population of the prison system exceeded 95% of its capacity. Okla. Stat., Tit. 57, § 365(A) (Supp. 1990). An inmate could be placed on preparóle after serving 15% of his sentence, § 365(A)(2), and he was eligible for parole when one-third of his sentence had elapsed, § 332.7(A). The Pardon and Parole Board (Board) had a role in the placement of both parolees and preparolees. ■ The Board itself determined who could participate in the Program, while the Governor, based on the Board’s recommendation, decided whether a prisoner would be paroled. As we describe further in Part II, infra, participants in the Program were released subject to constraints similar to those imposed on parolees.
In October 1990, after reviewing respondent Ernest Eugene Harper’s criminal record and conduct while incarcerated, the Pardon and Parole Board simultaneously recommended him' for parole and released him under the Program. At that time, respondent had served 15 years of a life sentence for two murders. Before his release, respondent underwent orientation, during which he reviewed the “Rules and Conditions of Pre-Parole Conditional Supervision,” see App. 7, and after which he executed a document indicating that he “understood] that being classified to community level depended] upon [his] compliance with each of these expectations,” id,., at 6. He spent five apparently uneventful months outside the penitentiary. Nonetheless, the Governor of Oklahoma denied respondent parole. On March 14, 1991, respondent was telephoned by his parole officer, informed of the Governor’s decision, and told to report back to prison, which he did later that day.
Respondent filed a petition for a writ of habeas corpus in state court complaining that his summary return to prison had deprived him of liberty without due process. The state trial court denied relief and the Oklahoma Court of Criminal Appeals affirmed. 852 P. 2d 164 (1993). The Court of Criminal Appeals concluded that respondent’s removal from the Program impinged only upon an interest in his “degree of confinement,” an interest to which the procedural protections set out in Morrissey did not attach. 852 P. 2d, at 165. The court found “[dispositive of the issue” the fact that respondent “was not granted parole by the Governor of Oklahoma.” Ibid. The court noted that the Board had adopted a procedure under which preparolees subsequently denied parole remained on the Program, and had their cases reviewed within 90 days of the denial for a determination whether they should continue on preparóle. According to the court, “such a procedure gives an inmate sufficient notice when he is placed in the program that he may be removed from it when the governor exercises his discretion and declines to grant parole.” Ibid.
Respondent fared no better in District Court on his petition for relief under 28 U. S. C. § 2254. But the Tenth Circuit reversed. 64 F. 3d 563 (1995). It determined that pre-paróle “more closely resembles parole or probation than even the more permissive forms of institutional confinement” and that “[d]ue process therefore mandates that program participants receive at least the procedural protections described in Morrissey.” Id., at 566-567. Petitioners sought certio-rari on the limited question whether preparóle “is more similar to parole or minimum security imprisonment; and, thus, whether continued participation in such program is protected by the Due Process Clause of the Fourteenth Amendment.” Pet. for Cert. i. We granted certiorari, 517 U. S. 1219 (1996), and, because we find that preparóle as it existed at the time of respondent’s release was equivalent to parole as understood in Morrissey, we affirm.
II
“The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey, 408 U. S., at 477. In Morrissey, we described the “nature of the interest of the parolee in his continued liberty”:
“[H]e can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. . . . The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions.” Id., at 482.
This passage could just as easily have applied to respondent while he was on preparóle. In compliance with state procedures, he was released from prison before the expiration of his sentence. He kept his own residence; he sought, obtained, and maintained a job; and he lived a life generally free of the incidents of imprisonment. To be sure, respondent’s liberty was not unlimited. He was not permitted to use alcohol, to incur other than educational debt, or to travel outside the county without permission. App. 7-8. And he was required to report regularly to a parole officer. Id., at 7. The liberty of a parolee is similarly limited, but that did not in Morrissey, 408 U. S., at 478, render such liberty beyond procedural protection.
Petitioners do not ask us to revisit Morrissey; they merely dispute that preparóle falls within its compass. Our inquiry, they argue, should be controlled instead by Meachum v. Fano, 427 U. S. 215 (1976). There, we determined that the interest of a prisoner in avoiding an intrastate prison transfer was “too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.” Id., at 228; see also Sandin v. Conner, 515 U. S. 472, 487 (1995). Petitioners contend that reincarceration of a preparolee was nothing more than a “transfe[r] to a higher degree of confinement” or a “classification to a more supervised prison environment,” Brief for Petitioners 18, which, like transfers within the prison setting, involved no liberty interest.
In support of their argument that preparóle was merely a lower security classification and not parole, petitioners identify several aspects of the Program said to render it different from parole. Some of these do not, in fact, appear to distinguish the two programs. Others serve only to set preparóle apart from the specific terms of parole as it existed in Oklahoma, but not from the more general class of parole identified in Morrissey. None of the differences — real or imagined— supports a view of the Program as having been anything other than parole as described in Morrissey.
We first take up the phantom differences. We are told at the outset that the purposes of preparóle and parole were different. Preparóle was intended “to reduce prison overcrowding,” while parole was designed “to help reintegrate the inmate into society.” Reply Brief for Petitioners 10. This alleged difference is less than it seems. Parole could also be employed to reduce prison overcrowding, see Okla. Stat., Tit. 57, § 332.7(B) (Supp. 1990). And the Program’s requirement that its participants work or attend school belies the notion that preparóle was concerned only with moving bodies outside of teeming prison yards. In fact, in their brief below, petitioners described the Program as one in which the Department of Corrections “places eligible inmates into a community for the purpose of reintegration into society.” Brief for Appellees in No. 95-5026 (CA10), p. 7, n. 2.
We are also told that “an inmate on the Program continues to serve his sentence and receives earned credits . . . , whereas a parolee is not serving his sentence and, if parole is revoked, the parolee is not entitled to deduct from his sentence time spent on parole.” Reply Brief for Petitioners 11. Our review of the statute in effect when respondent was released, however, reveals that a parolee was “entitled to a deduction from his sentence for all time during which he has been or may be on parole” and that, even when parole was revoked, the Board had the discretion to credit time spent on parole against the sentence. Okla. Stat., Tit. 57, §350 (Supp. 1990).
Petitioners next argue that preparolees, unlike parolees, remained within the custody of the Department of Corrections. This is said to be evidenced by respondent’s having had to report to his parole officer weekly and to provide the officer with a weekly itinerary. Reply Brief for Petitioners 13. We are at a loss to explain why respondent’s regular visits to his parole officer rendered him more “in custody” than a parolee, who was required to make similar visits. See App. to Brief for Respondent 28a. Likewise, the provision that preparolees “be subject to disciplinary proceedings as established by the Department of Corrections” in the event that they “violate any rule or condition during the period of community supervision,” Okla. Stat., Tit. 57, § 365(E) (Supp. 1990), did not distinguish their “custodial” status from that of parolees, who were also subject to the department’s custody in the event of a parole violation. See Reply Brief for Petitioners 13.
Petitioners, for their final nonexistent distinction, argue that, because a preparolee “is aware that he may be transferred to a higher security level if the Governor, through his discretionary power, denies parole,” he does not enjoy the same liberty interest as a parolee. Brief for Petitioners 20. Preparóle, contend petitioners, was thus akin to a furlough program, in which liberty was not conditioned on the participant’s behavior but on extrinsic events. By this reasoning, respondent would have lacked the “implicit promise” that his liberty would continue so long as he complied with the conditions of his release, Morrissey, 408 U. S., at 482. Respondent concedes the reasoning of petitioners’ argument as it relates to furloughs, but challenges the premise that his participation in the Program was conditioned on the Governor’s decision regarding parole.
In support of their assertion that a preparolee knew that a denial of parole could result in reincarceration, petitioners rely — as they have throughout this litigation — on a procedure promulgated in August 1991, nearly five months after respondent was returned to prison. See Pardon and Parole Board Procedure No. 004-011 (1991), App. to Pet. for Cert. 56a. The Court of Criminal Appeals also relied on this provision, but because it was not in effect when respondent was released, it has little relevance to this case.
Nor have we been presented with any other evidence to substantiate this asserted limitation on respondent’s release. The closest petitioners come is to direct us to the orientation form reviewed with respondent upon his release. Item 9 of that orientation form says: “Reviewed options available in the event of parole denial.” App. 5. Mindful of Procedure No. 004-011, as amended after respondent was reincarcer-ated, it is possible to read this item as indicating that respondent was told his participation in the Program could be terminated if parole were denied. But the mere possibility of respondent’s having been so informed is insufficient to overcome his showing of the facially complete, written “Rules and Conditions of Pre-Parole Conditional Supervision,” App. 7-9, which said nothing about the effect of a parole denial.
Counsel for the State also claims that at the time respondent was participating in the Program, preparolees were always reincarcerated if the Governor denied them parole. Tr. of Oral Arg. 8. In the absence of evidence to this effect — and the State points to none — this assertion is insufficient to rebut the seemingly complete rules and conditions of respondent’s release. On the record before us, therefore, the premise of petitioners’ argument — that respondent’s continued participation was conditioned on extrinsic events — is illusory, and the analogy to furlough inapposite.
Petitioners do identify some actual differences between preparóle and Oklahoma’s version of parole, but these do no better at convincing us that preparóle was different from parole as we understood it in Morrissey. As petitioners point out, participation in the Program was ordered by the Board, while the Governor conferred parole. In this regard, preparóle was different from parole in Oklahoma; but it was no different from parole as we described it in Morrissey. See 408 U. S., at 477-478. In addition, preparolees who “escape[d]” from the Program could be prosecuted as though they had escaped from prison, see Okla. Stat., Tit. 57, § 365(F) (Supp. 1990), while it appears that parolees who “escaped” from parole were subject not to further prosecution, but to revocation of parole, see Reply Brief for Petitioners 11. That the punishment for failure to abide by one of the conditions of his liberty was potentially greater for a prepa-rolee than for a parolee did not itself diminish that liberty. Petitioners also note that a preparolee could not leave Oklahoma under any circumstances, App. 7, while a parolee could leave Oklahoma with his parole officer’s permission, App. to Brief for Respondent 27a. This minor difference in a released prisoner’s ability to travel did not, we think, alter the fundamentally parole-like nature of the Program.
1 — 4 b — I 1 — 4
We conclude that the Program, as it existed when respondent was released, was a kind of parole as we understood parole in Morrissey. The judgment of the Tenth Circuit is therefore affirmed.
It is so ordered.
. Respondent contends that the petition for certiorari was filed out of time, and that we are thus without jurisdiction. We disagree. A timely filed petition for rehearing will toll the running of the 90-day period for filing a petition for certiorari until disposition of the rehearing petition. Missouri v. Jenkins, 495 U. S. 33, 46 (1990). The petition for certiorari was filed within 90 days of the denial of rehearing. Although the petition for rehearing was filed two days late, the Tenth Circuit granted petitioners “leave to file a late petition for rehearing and suggestion for rehearing en banc,” as it had authority to do. See Fed. Rule App. Proc. 40(a). Moreover, after granting petitioners leave to file the petition for rehearing, the Tenth Circuit treated it as timely and no mandate issued until after the petition was denied. See Fed. Rule App. Proc. 41(a). In these circumstances, we are satisfied that both the petition for rehearing and the subsequent petition for certiorari were timely filed.
The version of Procedure No. 004-011 in effect when respondent was placed on the Program was silent as to a parole denial’s effect. See App. to Pet. for Cert. 43a-52a. The procedure was amended again in 1994, and now provides that “[i]nmates denied parole by the Governor while on [preparóle] will remain on the program, unless returned to higher security by due process.” App. to Brief for Respondent 38a.
Equally illusory is the argument, which petitioners made for the first time in this Court, that the Board had authority to reimprison a prepa-rolee for any reason or for no reason. The written rules and conditions of respondent’s release identify no such absolute discretion, and petitioners point to nothing to support their contention.
A comparison of the conditions of preparóle of which respondent was informed, App. 7-9, and those of which a roughly contemporary parolee would have been informed, App. to Brief for Respondent 27a-30a, reveals that — except for the travel and “escape” provisions — the two sets of conditions were essentially identical.
The Program appears to be different now. We have no occasion to pass on whether the State’s amendments to the Program, adopted since respondent was reincarcerated, render the liberty interest of a present-day preparolee different in kind from that of a parolee.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees.
No. 72-3125
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 19, 1973.
Darryl J. Tschirn, C. T. Williams, Jr., New Orleans, La., for plaintiff-appellant.
John O. Charrier, Jr., New Orleans, La., for defendants-appellees.
Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This is a seaman’s action for damages for personal injuries sustained while working on a barge off the coast of Louisiana.
Darrell G. Nimnicht was employed by Dick Evans, Inc. on Lay Barge No. 23 owned by J. Ray McDermott and Company, Inc. On February 13, 1970, Nimnicht was assigned to remove a small hand-operated hydraulic pump from a gondola cart on a total saturation diving system aboard Barge No. 23. The diving system was owned by Evans. This gondola cart was used to move a diving bell into position so that the divers could be transferred from the system to the bell and vice-versa. While in the process of removing this pump, Nimnicht sustained an injury to his back.
Alleging the unseaworthiness of the barge and negligence of his employer, Nimnicht filed suit under the Jones Act and General Maritime Law against Evans, McDermott, and McDermott’s insurer, Travelers Insurance Company. The case was submitted to the jury on interrogatories.
On the special interrogatories submitted to it, the jury found that Nimnicht was a seaman but that his employer was not negligent and that the barge was not unseaworthy. Nevertheless, in response to another interrogatory pertaining to compensatory damages, the jury entered an award of $13,500. In addition, the jury made certain findings regarding maintenance and cure which are not on appeal here. The relevant interrogatories answered by the jury are as follows:
1. Was plaintiff, Darrell G. Nimnicht, injured aboard McDermott Barge #23 on February 13, 1970?
A. Yes.
2. Was plaintiff a seaman or a member of the crew of Mc-Dermott #23?
A. Yes.
3. Was the barge McDermott #23 unseaworthy ?
A. No.
5. Did Dick Evans own, operate, control or have an operational interest in the barge in question?
A. Yes.
6. Was the defendant, Dick Evans, Inc., through its employees, negligent ?
A. No.
9. Was the plaintiff, Darrell Nimnicht, negligent?
A. No.
11. Without any reduction for negligence on the part of the plaintiff, if any, what amount do you find will fairly and adequately compensate plaintiff for the damages he sustained ?
A. $13,500.
After receiving the verdict responding to the interrogatories, the trial court pointed out to the jury that finding no negligence or unseaworthiness on the part of appellees there was no party which could be held liable to pay the damage award. Then, the Court, acting on the authority of Rule 49(b) F.R.Civ.P., entered judgment for appellees. Appellant moved for a new trial on the ground that the inconsistent verdicts evinced confusion on the part of the jury. Motion denied. He appeals. We affirm.
There was no objection to the form of the interrogatories as propounded to the jury. It, therefore, is too late to complain on appeal, Wyoming Construction Company v. Western Casualty & Surety Company, 10 Cir., 1960, 275 F.2d 97, cert. denied 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011, Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197.
This leaves only the question of whether the trial court proceeded correctly in entering judgment for the appellees, notwithstanding the response to Interrogatory 11. For the answer to this we look to Rule 49(b), F.R.Civ.P., which provides:
“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in 'accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.”
This case presents a situation in which the answers to the special interrogatories were consistent with each other but inconsistent with the findings as to the quantum of damages. Under Rule 49(b) the trial court had three alternatives: (1) to enter judgment in accordance with the special answers, notwithstanding the general verdict, (2) to return the jury for further deliberation, or (3) to order a new trial. The trial court chose the first alternative, holding, in effect, that the answers to the special interrogatories inexorably negated the award of damages.
We are of the opinion that those findings left the District Court with no room to adopt any other course. In the absence of unseaworthiness or negligence, damages could not be awarded. The jury should not have responded to Interrogatory No. 11. The fact that it mistakenly did so could not change the answers to the prerequisite questions, upon which any damages at all had to live or die.
The judgment of the District Court 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_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Alfred PLAYER, Appellant, v. William F. STEINER, Warden, Maryland House of Correction, Appellee.
No. 8376.
United States Court of Appeals Fourth Circuit.
June 6, 1961.
Alfred Player pro se.
No appearance for appellee.
SOBELOFF, Chief Judge.
Alfred Player, a prisoner in the Maryland House of Correction, seeks to appeal from the District Court’s dismissal without a hearing of his petition for a writ of habeas corpus. The District Court, while granting leave to appeal in forma pauperis, denied the required certificate of probable cause. The question now before the court is whether probable cause exists for the issuance of the certificate. Burgess v. Warden, 4 Cir., 1960, 284 F.2d 486.
The present petition is the second one filed in the District Court by Player. The first was dismissed because of failure to exhaust state remedies, and this court dismissed the appeal. Player v. Steiner, 4 Cir., 1960, 284 F.2d 306. In its opinion dismissing Player’s present petition, the District Court held that Player has now exhausted his state remedies. The court apparently rested its dismissal on two grounds: First, the petitioner failed to appeal from his original trial in the state court and because of this cannot now proceed by habeas corpus in the federal courts, even after exhausting post-conviction remedies in the state courts; second, Player has had full consideration of all of his contentions by the Maryland courts.
Player alleges that on May 5, 1959, he was convicted in the Circuit Court for Montgomery County, Maryland, on an indictment charging housebreaking, and was sentenced to the House of Correction for four years. In the papers Player has filed, he excused his failure to appeal by alleging that he lacked the requisite knowledge to initiate an appeal, that he directed his attorney to file an appeal but the attorney neglected to do so, and that the Warden of the Montgomery County jail refused to permit him to contact another attorney. In the face of such allegations, the failure to appeal can furnish a federal court no basis for dismissing the petition without a hearing, regardless of whether the state courts would consider the petitioner’s allegations in a collateral proceeding. Moreover, it does not appear that the petitioner has ever been given a hearing on the truth of his allegations by a state court. Thus, the rule that a federal court need not grant a hearing on the facts if satisfied that the state process has fairly considered them and reached a satisfactory conclusion has no application here. Holly v. Smyth, 4 Cir., 1960, 280 F.2d 536, 542-543; Bolling v. Smyth, 4 Cir., 1960, 281 F.2d 192; Grundler v. State of North Carolina, 4 Cir., 1960, 283 F.2d 798, 802.
However, while not agreeing with the District Court’s reasons for the dismissal, I am of the opinion that no probable cause exists here for an appeal. Although he professes in his petition to be bringing himself within the doctrine that a conviction upon no evidence is a denial of due process, see Thompson v. City of Louisville, 1960, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, Player is essentially attacking the sufficiency of the evidence at his state trial for housebreaking. In his petition, he lists the various elements of the crime of housebreaking and argues that there was no evidence to show that the entry into the building was by “breaking.” He alleges nothing with respect to the evidence bearing on any of the other elements of the crime. An absence of evidence proving one of the elements of a crime which is made up of several elements is not the same as a conviction on absolutely no evidence at all. Player’s allegations merely concern an issue of state criminal law and are insufficient to raise a substantial constitutional question. See: Morrison v. Smyth, 4 Cir., 1960, 273 F.2d 544; Grundler v. State of North Carolina, 4 Cir., 1960, 283 F.2d 798.
The certificate of probable cause will not be issued, and the appeal is therefore dismissed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_issue_3
|
P
|
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.
HOBBIE v. UNEMPLOYMENT APPEALS COMMISSION OF FLORIDA et al.
No. 85-993.
Argued December 10, 1986
Decided February 25, 1987
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Powell, J., post, p. 146, and Stevens, J., post, p. 147, filed opinions concurring in the judgment. Rehnquist, C. J., filed a dissenting statement, post, p. 146.
Walter E. Carson argued the cause for appellant. With him on the briefs were Mitchell A. Tyner and Frank M. Palmour.
John D. Maher argued the cause and filed a brief for appel-lee Unemployment Appeals Commission.
Briefs of amici curiae urging reversal were filed for The American Jewish Congress et al. by Ronald A. Krauss, Marc D. Stem, and Jack D. Novik; for the Baptist Joint Committee on Public Affairs et al. by Donald R. Brewer; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Council on Religious Freedom by Lee Boothby, James M. Parker, and Robert W. Nixon; and for the Rutherford Institute et al. by W. Charles Bundren, James J. Knicely, Alfred J. Lindh, and William B. Hollberg.
Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, and Roger Clegg filed a brief for the United States as amicus curiae.
Justice Brennan
delivered the opinion of the Court.
Appellant’s employer discharged her when she refused to work certain scheduled hours because of sincerely held religious convictions adopted after beginning employment. The question to be decided is whether Florida’s denial of unemployment compensation benefits to appellant violates the Free Exercise Clause of the First Amendment of the Constitution, as applied to the States through the Fourteenth Amendment.
h-l
Lawton and Company (Lawton), a Florida jeweler, hired appellant Paula Hobbie in October 1981. She was employed by Lawton for 214 years, first as a trainee and then as assistant manager of a retail jewelry store. In April 1984, Hobbie informed her immediate supervisor that she was to be baptized into the Seventh-day Adventist Church and that, for religious reasons, she would no longer be able to work on her Sabbath, from sundown on Friday to sundown on Saturday. The supervisor devised an arrangement with Hobbie: she agreed to work evenings and Sundays, and he agreed to substitute for her whenever she was scheduled to work on a Friday evening or a Saturday.
This arrangement continued until the general manager of Lawton learned of it in June 1984. At that time, after a meeting with Hobbie and her minister, the general manager informed appellant that she could either work her scheduled shifts or submit her resignation to the company. When Hobbie refused to do either, Lawton discharged her.
On June 4, 1984, appellant filed a claim for unemployment compensation with the Florida Department of Labor and Employment Security. Under Florida law, unemployment compensation benefits are available to persons who become “unemployed through no fault of their own.” Fla. Stat. §443.021 (1985). Lawton contested the payment of benefits on the ground that Hobbie was “disqualified for benefits” because she had been discharged for “misconduct connected with [her] work.” §443.101(l)(a).
A claims examiner for the Bureau of Unemployment Compensation denied Hobbie’s claim for benefits, and she appealed that determination. Following a hearing before a referee, the Unemployment Appeals Commission (Appeals Commission) affirmed the denial of benefits, agreeing that Hobbie’s refusal to work scheduled shifts constituted “misconduct connected with [her] work.” App. 3.
Hobbie challenged the Appeals Commission’s order in the Florida Fifth District Court of Appeal. On September 10, 1985, that court summarily affirmed the Appeals Commission. We postponed jurisdiction, 475 U. S. 1117 (1985), and we now reverse.
II
Under our precedents, the Appeals Commission’s disqualification of appellant from receipt of benefits violates the Free Exercise Clause of the First Amendment, applicable to the States through the Fourteenth Amendment. Sherbert v. Verner, 374 U. S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981). In Sherbert we considered South Carolina’s denial of unemployment compensation benefits to a Sabbatarian who, like Hobbie, refused to work on Saturdays. The Court held that the State’s disqualification of Sherbert
“force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against [her] for her Saturday worship.” 374 U. S., at 404.
We concluded that the State had imposed a burden upon Sherbert’s free exercise rights that had not been justified by a compelling state interest.
In Thomas, too, the Court held that a State’s denial of unemployment benefits unlawfully burdened an employee’s right to free exercise of religion. Thomas, a Jehovah’s Witness, held religious beliefs that forbade his participation in the production of armaments. He was forced to leave his job when the employer closed his department and transferred him to a division that fabricated turrets for tanks. Indiana then denied Thomas unemployment compensation benefits. The Court found that the employee had been “put to a choice between fidelity to religious belief or cessation of work” and that the coercive impact of the forfeiture of benefits in this situation was undeniable:
“ ‘Not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of . . . religion, but the pressure upon [the employee] to forego that practice is unmistakable.”’ Thomas, supra, at 717 (quoting Sherbert, supra, at 404).
We see no meaningful distinction among the situations of Sherbert, Thomas, and Hobbie. We again affirm, as stated in Thomas:
‘Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” 450 U. S., at 717-718 (emphasis added).
Both Sherbert and Thomas held that such infringements must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest. The Appeals Commission does not seriously contend that its denial of benefits can withstand strict scrutiny; rather it urges that we hold that its justification should be determined under the less rigorous standard articulated in Chief Justice Burger’s opinion in Bowen v. Roy, 476 U. S. 693, 707-708 (1986): “[T]he Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.” Five Justices expressly rejected this argument in Roy. See id., at 715-716 (Blackmun, J., concurring in part); id., at 728 (O’Connor, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 733 (White, J., dissenting). We reject the argument again today. As Justice O’Connor pointed out in Roy, “[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimal scrutiny that the Equal Protection Clause already provides.” Id., at 727. See also Wisconsin v. Yoder, 406 U. S. 205, 215 (1972) (“[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion”).
The Appeals Commission also suggests two grounds upon which we might distinguish Sherbert and Thomas from the present case. First, the Appeals Commission points out that in Sherbert the employee was deemed completely ineligible for benefits under South Carolina’s unemployment insurance scheme because she would not accept work that conflicted with her Sabbath. The Appeals Commission contends that, under Florida law, Hobbie faces only a limited disqualification from receipt of benefits, and that once this fixed term has been served, she will again “be on an equal footing with all other workers, provided she avoids employment that conflicts with her religious beliefs.” Brief for Appellee Appeals Commission 12. The Appeals Commission argues that such a disqualification provision is less coercive than the ineligibility determination in Sherbert, and that the burden it imposes on free exercise is therefore permissible.
This distinction is without substance. The immediate effects of ineligibility and disqualification are identical, and the disqualification penalty is substantial. Moreover, Sherbert was given controlling weight in Thomas, which involved a disqualification provision similar in all relevant respects to the statutory section implicated here. See Thomas, 450 U. S., at 709-710, n. 1.
The Appeals Commission also attempts to distinguish this case by arguing that, unlike the employees in Sherbert and Thomas, Hobbie was the “agent of change” and is therefore responsible for the consequences of the conflict between her job and her religious beliefs. In Sherbert and Thomas, the employees held their respective religious beliefs at the time of hire; subsequent changes in the conditions of employment made by the employer caused the conflict between work and belief. In this case, Hobbie’s beliefs changed during the course of her employment, creating a conflict between job and faith that had not previously existed. The Appeals Commission contends that “it is . . . unfair for an employee to adopt religious beliefs that conflict with existing employment and expect to continue the employment without compromising those beliefs” and that this “intentional disregard of the employer’s interests . . . constitutes misconduct.” Brief for Appellee Appeals Commission 20-21.
In effect, the Appeals Commission asks us to single out the religious convert for different, less favorable treatment than that given an individual whose adherence to his or her faith precedes employment. We decline to do so. The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. The timing of Hobbie’s conversion is immaterial to our determination that her free exercise rights have been burdened; the salient inquiry under the Free Exercise Clause is the burden involved. In Sherbert, Thomas, and the present case, the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee’s choice.
Finally, we reject the Appeals Commission’s argument that the awarding of benefits to Hobbie would violate the Establishment Clause. This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. See, e. g., Wisconsin v. Yoder, 406 U. S. 205 (1972) (judicial exemption of Amish children from compulsory attendance at high school); Walz v. Tax Comm’n, 397 U. S. 664 (1970) (tax exemption for churches). As in Sherbert, the accommodation at issue here does not entangle the State in an unlawful fostering of religion:
“In holding as we do, plainly we are not fostering the ‘establishment’ of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshipers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent the involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.” 374 U. S., at 409.
1 — 1 1 — \ HH
We conclude that Florida s refusal to award unemployment compensation benefits to appellant violated the Free Exercise Clause of the First Amendment. Here, as in Sherbert and Thomas, the State may not force an employee “to choose between following the precepts of her religion and forfeiting benefits, . . . and abandoning one of the precepts of her religion in order to accept work.” Sherbert, 374 U. S., at 404. The judgment of the Florida Fifth District Court of Appeal is therefore
Reversed.
An employer’s duty to accommodate the religious beliefs of employees is governed by Title VII of the Civil Rights Act of 1964. 42 U. S. C. § 2000e et seq. Hobbie has not sought relief pursuant to Title VII in this action.
It is undisputed that appellant’s conversion was bona fide and that her religious belief is sincerely held. See Record 70, 100.
The Florida statute defines “misconduct” as follows:
“ ‘Misconduct’ includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
“(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
“(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” Fla. Stat. §443.036(24) (1985).
The Fifth District Court of Appeal issued an order stating: “PER CU-RIAM. AFFIRMED.” App. 6. See 475 So. 2d 711 (1985). Under Florida law, a per curiam affirmance issued without opinion cannot be appealed to the State Supreme Court. See Fla. Rule App. Proc. 9.030(a)(2)(A)(i-iv). Hobbie therefore sought review directly in this Court.
The parties initially disagreed about whether an appeal lay under 28 U. S. C. § 1257(2). The Appeals Commission maintained that the decision of the Fifth District Court of Appeal did not draw into question the constitutionality of the state statute and, therefore, that an appeal did not lie. See Motion to Dismiss or Affirm 7-11. However, the Appeals Commission now concedes that the appeal is proper. Brief for Appellee Appeals Commission 4-6. See R. Stem, E. Gressman, & S. Shapiro, Supreme Court Practice 112 (6th ed. 1986) (appeal lies under 28 U. S. C. § 1257(2) even if the state court has not been explicit in its rejection of the constitutional claim raised); cf. Lawrence v. State Tax Comm’n, 286 U. S. 276, 282-283 (1932).
See Cantwell v. Connecticut, 310 U. S. 296 (1940); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948).
In Bowen v. Roy, 476 U. S. 693 (1986), the Court considered a free exercise challenge to the statutory requirement that a Social Security number be supplied by any applicant seeking certain welfare benefits. In his opinion Chief Justice Burger expressly reaffirmed Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), and distinguished those cases from Roy. He observed that the statutes at issue in Sherbert and Thomas provided:
“[A] person was not eligible for unemployment compensation benefits if, ‘without good cause,’ he had quit work or refused available work. The ‘good cause’ standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be ‘without good cause’ tends to exhibit hostility, not neutrality, towards religion. ... In those cases, therefore, it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption.” 476 U. S., at 708 (citations omitted).
Thus, even if the Court had accepted the reasoning of the Chief Justice’s opinion in Roy — which it did not — we would apply strict scrutiny in this ease. Although the purpose of the statute is to provide benefits to those persons who become “unemployed through no fault of their own,” Fla. Stat. §443.021 (1985), Florida nonetheless views a religiously motivated choice which leads to dismissal as “misconduct connected with . . . work.” §443.101. This scheme — which labels and penalizes behavior dictated by religious belief as intentional misconduct — exhibits greater hostility toward religion than one deeming such resignations to be “without good cause.”
When an employee voluntarily leaves a position without good cause attributable to the employer, he or she is disqualified from receipt of benefits for the week of the departure and until he or she becomes reemployed and earns 17 times the weekly benefit amount. §443.101(l)(a)(l). The penalty for discharge due to misconduct connected with work — the relevant provision here — is identical to that for voluntary departure, except that an additional penalty of a specified number of weeks may be added depending upon the severity of the employee’s offense. § 443.101(l)(a)(2).
Cf. United States v. Ballard, 322 U. S. 78, 87 (1944) (In applying the Free Exercise Clause, courts may not inquire into the truth, validity, or reasonableness of a claimant’s religious beliefs); Callahan v. Woods, 658 F. 2d 679, 687 (CA9 1981) (“If judicial inquiry into the truth of one’s religious beliefs would violate the free exercise clause, an inquiry into one’s reasons for adopting those beliefs is similarly intrusive. So long as one’s faith is religiously based at the time it is asserted, it should not matter, for constitutional purposes, whether that faith derived from revelation, study, upbringing, gradual evolution, or some source that appears entirely incomprehensible”) (citation omitted).
In the unemployment benefits context, the majorities and those dissenting have concluded that, were a State voluntarily to provide benefits to individuals in Hobbie’s situation, such an accommodation would not violate the Establishment Clause. See Thomas, 450 U. S., at 719-720 (quoting Sherbert, 374 U. S., at 409); 450 U. S., at 723 (Rehnquist, J., dissenting); Sherbert, supra, at 422-423 (Harlan, J., dissenting).
The Appeals Commission contends that this Court’s recent decision in Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985), reveals that the accommodation sought by Hobbie would constitute an unlawful establishment of religion. In Thornton, we held that a Connecticut statute that provided employees with an absolute right not to work on their Sabbath violated the Establishment Clause. The Court determined that the State’s “unyielding weighting in favor of Sabbath observers over all other interests . . . ha[d] a primary effect that impermissibly advance[d] a particular religious practice,” id., at 710, and placed an unacceptable burden on employers and co-workers because it provided no exceptions for special circumstances regardless of the hardship resulting from the mandatory accommodation.
In contrast, Florida’s provision of unemployment benefits to religious observers does not single out a particular class of such persons for favorable treatment and thereby have the effect of implicitly endorsing a particular religious belief. Rather, the provision of unemployment benefits generally available within the State to religious observers who must leave their employment due to an irreconcilable conflict between the demands of work and conscience neutrally accommodates religious beliefs and practices, without endorsement.
Question: What is the issue of the decision?
A. First Amendment, miscellaneous (cf. comity: First Amendment)
B. commercial speech, excluding attorneys
C. libel, defamation: defamation of public officials and public and private persons
D. libel, privacy: true and false light invasions of privacy
E. legislative investigations: concerning internal security only
F. federal or state internal security legislation: Smith, Internal Security, and related federal statutes
G. loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher)
H. loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court)
I. loyalty oath: government employees
J. loyalty oath: political party
K. loyalty oath: teachers
L. security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements
M. conscientious objectors (cf. military draftee or military active duty) to military service
N. campaign spending (cf. governmental corruption):
O. protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees
P. free exercise of religion
Q. establishment of religion (other than as pertains to parochiaid:)
R. parochiaid: government aid to religious schools, or religious requirements in public schools
S. obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment
T. obscenity, federal
Answer:
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songer_circuit
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L
|
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.
HOWARD v. CAPITAL TRANSIT CO.
No. 9462.
United States Court of Appeals District of Columbia.
Argued April 14, 1947.
Decided Oct. 13, 1947.
Mr. Edmund D. Campbell, of Washington, D. C., for appellant.
Mr. George D. Horning, Jr., of Washington, D. C., with whom Mr. Frank F. Roberson, of Washington, D. C., was on the brief, for appellee.
Before STEPHENS, CLARK, and WILBUR K. MILLER, Associate Justices.
WILBUR K. MILLER, Associate Justice.
The appellant, Mrs. Eleanor Howard, sued the appellee, Capital Transit Company, in the District Court of the United States for the District of Columbia to recover damages for injuries sustained when she was struck by a streetcar. The jurors decided against her and she appeals, on the ground that the trial court erroneously refused to give them four instructions which she offered.
The accident may be thus described: on the afternoon of January 19, 1945, Mrs. Howard mounted the westbound streetcar loading platform in Pennsylvania Avenue just east of 17th Street.« She walked west-tvardly as a westbound streetcar approached from behind her. Her testimony was that, on her signal, the car stopped and its door opened; as she was about to enter, the car started again, causing the door to strike her. All others who testified on the subject said the car did not stop and its door did not open. There was evidence that she stepped in front of the car.
It was undisputed that, even with the door open, no part of the car would overhang the platform. A bus, which Mrs. Howard knew would go nearer to her home than the streetcar would, was standing on the south side of Pennsylvania Avenue across the tracks from the loading platform.
Hence two courses were open to the jury: to accept Mrs. Howard’s statement that the open door or some other part of the car struck her as she stood in fancied safety on the platform; or to accept the testimony of two witnesses who said she stepped from the platform into the path of the approaching car. The verdict shows the jury chose the latter course. That finding, amply supported by the evidence, will not be disturbed unless prejudicial error was committed by the court, as the appellant claims, in refusing to instruct the jury in accordance with her requests.
The appellant’s first contention is that the court erred in refusing to give this instruction:
“The court instructs the jury that while the burden of proof is upon the plaintiff to establish the negligence of the defendant by a preponderance of the evidence, this proof of negligence or causation of the accident need not be established by testimony so clear that it excludes every other speculative theory.”
Because she was unable to tell what part of the streetcar struck her, the appellant says this instruction was necessary fairly to present the law to the jury. She adds that it was based on almost identical language used by this court in Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825, 840. Such language does occur in that opinion. It must be remembered, however, that the Christie case involved an injury alleged to have been inflicted by a negligent X-ray treatment. The one simple legal proposition exemplified by the case is thus stated in the opinion:
“ * * * We hold merely that the jury was justified in considering the character of the injury in connection with the other evidence to find that negligence existed.” (Italics supplied.)
That amounted to saying that the doctrine of res ipsa loquitur was applicable, for X-ray treatment carefully applied ordinarily does hot produce such injury; hence the result might be considered by the jury, in connection with other evidence, as indicating that due care was not used in the treatment. The res ipsa loquitur doctrine is not urged as applicable in the instant case.
The appellant also argues that the District Court erred to her prejudice in refusing to give the following instruction:
“The court instructs the jury that if you believe from the evidence that at the time of or immediately prior to the accident the plaintiff was standing or walking on the platform adjacent to the street car tracks for the purpose of boarding the street car of the defendant and that this purpose on the part of the plaintiff continued until she was struck by said street car, then the plaintiff was legally in the position of a passenger in the care of the defendant, and as such entitled to receive the highest degree of care from the defendant and its agents to prevent inj ury to her; and in the event you find that the motorman of the defendant’s street car failed to exercise such highest degree of care then your verdict should be for the plaintiff.” ,
This court has not had occasion to attempt the formulation of a rule under which it may be determined when a prospective patron of a streetcar has attained the legal status of a passenger. Our decision in Jaquette v. Capital Traction Co., 34 App.D. C. 41, 25 L.R.A.,N.S., 407, may seem to follow Massachusetts rulings that one must actually lay hold of the car in order to become a passenger. But the facts in that case were that Jaquette, intending to board a car which had stopped in the street to receive passengers, ■ was injured stumbling over th.e fender as he crossed the track in front of the car. He had not signaled to indicate that he intended to board the car. So the Jaquette case holds no more than that one who, intending to board but giving no signal, walks in front of a standing streetcar and stumbles over its fender has not attained the passenger status.
We have not discovered any case in any jurisdiction holding that one attains the legal status of a passenger by merely standing or walking on a streetcar loading platform in the midst of a city street, with an undisclosed purpose of boarding an approaching car. We hold that such conduct does not give rise to the passenger relation unless accompanied by additional circumstances which we need not now enumerate. The trial court correctly rejected the requested instruction for the reason that, had it been given, the jury would have been told that Mrs. Howard was in law a passenger if the jury believed that just prior to the accident she was standing or walking on the loading platform with the intention, known only to herself, of boarding a streetcar.
We express no opinion as to whether it would have been proper to instruct that, if the jury believed the appellant’s evidence as to what occurred, she had attained the legal status of a passenger and so was entitled to the highest degree of care, for the instruction requested by the appellant was not of that nature, although it may have been so intended. It is not the duty of a trial court to rewrite an incorrect request to charge.
The instruction under discussion was not justified by .Great Falls and Old Dominion Railway Co. v. Hammerly, 40 App. D.C. 196, cited by the appellant as having that effect. In that case Hammerly was injured while standing on a suburban station platform owned and controlled by the railway company, (so we applied the criterion of the railroad station cases in determining that Hammerly was a passenger.
The appellant says the court erred in refusing a third instruction to the effect that it was the company's duty to furnish & reasonably safe loading platform. There was no pleading or proof that the platform, which conformed to governmental specifications, was unsafe. Statements of irrelevant principles of law, however sound in the abstract, have no place in instructions to juries.
The fourth instruction offered by the appellant and refused by the court was that a verdict may be found on the testimony of one witness, even if a number of witneses contradicted him. On that subject, the court charged the jury that “By a fair preponderance of the evidence is not meant the greater number of witnesses. * * * ” In view of this, the appellant was not prejudiced by the court’s refusal to give the instruction in the form requested by her.
Since the only reasons for reversal advanced by the appellant are, in our view, without substance, the judgment of the District Court entered pursuant to the verdict must stand.
Affirmed.
Pendergraft v. Royster, 203 N.C. 381, 166 S.E. 285. 292.
Franz v. Holyoke Street Ry. Co., 239 Mass. 565, 132 N.E. 270; Duchemin v. Boston Elevated R. Co., 186 Mass. 353, 71 N.E. 780, 66 L.R.A. 980, 104 Am. St.Rep. 580, 1 Ann.Cas. 603; Davey v. Greenfield & T. F. Street R. Co., 177 Mass. 106, 58 N.E. 172.
Stewart v. Capital Transit Co., 70 App.D.C. 346, 108 F.2d 1, certiorari denied 309 U.S. 657, 60 S.Ct. 515, 84 L.Ed. 1006, rehearing denied 309 U.S. 696, 60 S.Ct. 607, 84 L.Ed. 1036; Globe Furniture Co. v. Gately, 51 App.D.C. 367, 279 F. 1005; Robinson v. Parker, 11 App.D.C. 132.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_initiate
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Russell BUFALINO, Appellant, v. John W. HOLLAND, District Director of Immigration and Naturalization.
No. 12927.
United States Court of Appeals Third Circuit.
Argued Feb. 1, 1960.
Decided April 1, 1960.
Rehearing Denied April 27, 1960.
Claude O. Lanciano, Philadelphia, Pa., for appellant.
Joseph L. McGlynn, Jr., Philadelphia, Pa. (Harold K. Wood, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH, HASTIE and FORMAN, Circuit Judges.
FORMAN, Circuit Judge.
On December 16, 1957, the Immigration and Naturalization Service (hereinafter called the Service) ordered the appellant Russell Bufalino to show cause why he should not be deported (1) under 8 U.S.C.A. § 1251(a) (2) on the ground that he re-entered the United States without inspection at Miami, Florida, on April 30, 1956 and at New York, New York, on May 5, 1956, after brief sojourns in Cuba and Bimini respectively, and (2) under 8 U.S.C.A. § 1251(a) (5) in that he failed to register with the Attorney General of the United States in January 1956 and January 1957, as required by 8 U.S.C.A. § 1305. It is represented that on each re-entry he stated that he was a citizen of the United States.
During his hearing before a Special Inquiry Officer a third charge was lodged against him under 8 U.S.C.A. § 1251(a) (1) viz., that at the time of the above alleged illegal entries he was excludable because he did not possess a valid visa or other entry document.
The appellant contested only the second of these charges and asserted that his failure to register with the Attorney General in January 1956 and 1957 was “reasonably excusable and was not willful.” His application for termination of the proceedings pursuant to 8 U.S.C.A. § 1251a or, alternatively, for voluntary departure and preexamination under 8 U.S.C.A. § 1254(e) and 8 C.F.R. 235a.l with advance waiver of excludability under 8 U.S.C.A. § 1251(a) was denied by the Special Inquiry Officer who found the appellant deportable on all three charges.
An appeal was taken to the Board of Immigration Appeals which affirmed the findings and conclusions of the Special Inquiry Officer. Review of the order for deportation and denial of relief was then sought before the District Court for the Eastern District of Pennsylvania which granted a motion for summary judgment in favor of the District Director of Immigration and Naturalization, the respondent in this proceeding, and dismissed the petition for review.
On appeal from that judgment the appellant contends as he did before the Special Inquiry Officer, that his failure to provide the Attorney General with his address and other information as required by 8 U.S.C.A. § 1305 “was reasonably excusable and was not willful”, because until the inception of these proceedings he had always thought Pittston, Pennsylvania his birthplace and that therefore he is not deportable under 8 U.S.C.A. § 1251(a) (5).
The evidence introduced before the Special Inquiry Officer on this issue consisted, in part, of appellant’s school records. The record of a New York City school for 1910 shows his birth date as September 27, 1903 and that he was removing to Pittston, Pennsylvania; the record for 1914 shows his age to be ten years but no birth date is given; for 1915 only 1903 and 12 years of age are stated; and for 1917, October 29, 1903 and 14 years are given. All these records show Italy as appellant’s birthplace.
The Service also submitted a workmen’s compensation report which was filed in 1944 by the president of a company by which appellant was then employed. The report shows the appellant’s nationality as Italian. Although he did not make this report he testified to the close friendship which existed between the president of the company and himself.
Appellant’s voting registration for 1947 in Pittsburgh, Pennsylvania, gives his birthplace as Buffalo, New York and the date as November 29, 1905. Appellant denies that he supplied this information. He testified that when he registered to vote in Buffalo in 1925 or 1927 he gave his birthplace as Pittston, Pennsylvania.
His applications for a marriage license dated August 9, 1928 and for membership in the Elks Lodge in 1929, showed Pittston as his birthplace. The dates shown are September 29, 1904 and October 29, 1904. His social security and selective service registrations show the same place of birth. Both give his birth date as October 29, 1903.
Appellant’s birth certificate is part of this record. It shows that he was born in Montedoro, Italy on September 29, 1903. Its correctness has been conceded by the appellant.
Oral testimony as to the date and place of birth of the appellant was offered by his wife, brother and two sisters. Carmella (Caroline) Sciandra Bufalino, his wife, could only say that she had always heard that he was born in Pittston, Pennsylvania on October 29, 1903.
Each of his siblings testified to having been born in Montedoro, Italy. His brother- Calogero, or Charles, gave his date of birth as October 15, 1898. He did not know where the appellant was born. He could only remember the appellant in Pittston, Pennsylvania.
A sister, Cristina Teresina Cammella, testified that she was born on December 4, 1900 and had always heard that the appellant was born in Pittston, Pennsylvania on November 29th. She failed to give any year of birth.
The other sister, Josephine Bufalino Cordaro, stated her birth date to be February 7, 1897, making her, she thought, seven years senior to the appellant. She testified that to the best of her knowledge he was born in Pittston, Pennsylvania in the fall of 1903 or 1904.-
She also stated that she came to this country in 1902 or 1903 accompanied by her parents, sister and brother Calogero ; that her father died in 1904; that thereafter her mother took all four children back to Italy; that about a year later [January 13, 1906] she returned to this country with her mother and two brothers, leaving her sister in Italy; that after her mother died in 1910 she and the appellant returned to Italy from which they and their sister returned to the United States in 1914. The witness also related that after her marriage in Buffalo, New York, on March 18, 1914, the appellant lived at her house while attending school. She stated that she did not enroll him and that he must have enrolled himself.
In essence this witness testified that when she was almost seven years of age she and her family came to this country without appellant; that shortly after her father’s death, known to have occurred nine months later, the family including the appellant returned to Italy.
In testifying that the appellant did not accompany her on her first trip from Italy to the United States in 1903 but did make the return trip after the death of their father, this witness is saying that the appellant was born in Pittston. It is now undisputed that, in fact, the appellant was born on September 29, 1903 in Montedoro, Italy, and arrived in New York on December 21, 1903, together with this witness, their mother, brother and sister.
Having heard and observed the appellant’s wife, brother and sisters, the Special Inquiry Officer was “not convinced that these persons testified truthfully concerning their information and belief, and the reputation in the family, as to the place of [appellant’s] birth.” The record provides ample justification for this conclusion.
Nor was the information contained in the affidavit of Calogero Bufalino, an uncle of the appellant, born in Montedoro, Italy, on April 5,1878, any more reliable. He deposed as follows:
“ * * * The fourth child, Rosario [Russell] Bufalino, was not born until after Cristina [the appellant’s mother] left Montedoro for the United States. Your affiant further avers that his brother Angelo left Montedoro sometime early in the year 1903, at which time Cristina, his wife remained in Montedoro with the three children and at that time being pregnant. Your affiant further avers that he arrived in the United States on March 15, 1904 on the S.S. North America and immediately upon his landing in New York came to Pittston. Your affiant further avers that when the said Cristina Bufalino left Italy some six or eight months before he did, she was pregnant. * * * ”
In the light of the appellant’s birth certificate the recollection of this deponent is inaccurate.
The appellant has attacked the introduction in evidence of the records referred to earlier. He contends that they fail to meet the requirements of judicial admissibility. But it is not necessary that they do so for they were admitted not in a judicial but in an administrative proceeding where the more strict rules of evidence do not obtain. Navarette-Navarette v. Landon, 9 Cir., 1955, 223 F.2d 234, 237. See also Marcello v. Ahrens, 5 Cir., 1954, 212 F.2d 830, 837, affirmed sub nom. Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107.
During the course of the hearing the appellant filed his application for preexamination (Exhibit 35). He answered Item 14 as follows:
“During the past five years I have been employed by the following named persons or firms (if self employed, give nature of business) :
Name and Address of Employer Bonnie Stewart Penn Drape Co. Fairfax, Inc.
Type of Work & Salary Efficiency Man $200 per wk. Self Employed Efficiency Man $125 per wk.
From 1950 Dec. 1953 Dec. 1953
To 1953 To Date To Date”
The information given by the appellant in answer to this question was inaccurate and lacked required honesty and frankness. Instead of a direct answer to this simple inquiry the sum total of appellant’s contradictory and confused testimony elicited on lengthy cross examination demonstrated that he had many other employment associations and income producing connections concerning which his testimony was intentionally and purposefully vague and uninformative.
The appellant undertook to prove himself a person of good moral character and introduced 13 witnesses and 161 affidavits to this end. The affidavits were on printed forms with blank spaces for the insertion of the deponent’s business, number of years so engaged, nature of relationship with the appellant and the duration thereof. Except that those affidavits executed by naturalized citizens also provided space for the date and place of naturalization and deponent’s certificate number, the affidavits as printed were identical.
The appellant argued that it was an abuse of discretion to find that he had failed to show that he was a person of good moral character in the light of this volume of uncontradicted testimonials. The introduction of even as many as 161 affidavits and the oral testimony of 13 witnesses does not necessarily result in the establishment of good moral character. The Special Inquiry Officer was free to consider both the witnesses and the affidavits in terms of the association or knowledge upon which they testified or were based and to weigh this evidence together with all the other evidence in the case before him. He found that some of the affidavits were based upon a “nodding acquaintanceship” with the appellant rather than on close association and that some of the affiants had not seen him for protracted periods of time. He was within his province in determining that the appellant’s evidence, large in volume though it was, did not overcome the Unfavorable aspects of other evidence in the case against the appellant.
In addition to the foregoing the Special Inquiry Officer found that the appellant gave false testimony in these proceedings with regard to “his business connections and income as to his belief relative to his place of birth, as to his adoption of a specific birth date, and as to his absences from the United States.” Title 8 U.S.C.A. § 1101(f) (6) provides that an alien who testifies falsely to procure benefits under the immigration and nationality laws is estopped from demonstrating himself to be a person of good moral character. Therefore, having determined that the appellant testified falsely in these proceedings in order to avoid deportation the Special Inquiry Officer was required by this section to find that the appellant was not a person of good moral character.
An attempt was made to register the birth of the appellant as having occurred at Pittston, Pennsylvania on October 29, 1903 in the records of the Clerk of the Orphans’ Court of Luzerne County, Pennsylvania. Following is an extract from the findings of the Special Inquiry Officer in this regard:
“Exhibit 5 is a copy of a petition signed by Ettore Agolino as attorney for respondent. It is addressed to the Orphans Court of Luzerne County, Pennsylvania, and relates that the birth of respondent is recorded in the office of the Clerk, Orphans Court, in Birth Register Book, Volume 3, Page 52, as having occurred on October 29, 1903, at Pitts-ton, Pennsylvania. The petition goes on to say that a birth certificate is essential to petitioner in proceedings brought against him by the Immigration and Naturalization Service, and that the petitioner prays the court to grant a rule to show cause why the order of the court impounding the aforesaid record should not be revoked and a birth certificate issued. This document also contains an affidavit of respondent in which he deposes that the facts contained in the within petition are true and correct, to the best of his knowledge, information and belief, The date of the filing of this petition is not shown but the document is shown to have been notarized on January 10, 1958. The same exhibit includes an order of the court on January 14, 1958, setting a hearing for February 7, 1958. Counsel for respondent stated on the record (p. 10) that the petition described above was filed on January 14, 1958. Counsel stated on the record (p. R-184 that the President Judge of the Orphans Court, Luzerne County, expunged the record of respondent’s birth from the birth record book, acting upon the petition of counsel. In his earlier testimony, at Page 189, respondent stated that he had never made an application for a birth certificate in Luzerne County; that he had once inquired of his counsel if there is any way of getting a birth certificate; that his counsel said, T will get you affidavits when you are ready and we will do that’; and that this was ‘years ago’.” (Emphasis supplied.)
There can be no doubt that there was inserted in the records of Luzerne County, Pennsylvania a false entry of his birth place as Pittston, Pennsylvania and the date as October 29, 1903, which, undetected, could have been the foundation ■for the issuance to the appellant of a fictitious birth certificate. The circumstances of the patently false entry was called to the attention of the Orphans’ Court of Luzerne County which issued an order impounding that record. While appellant disclaims all knowledge of the falsity of the entry — who else but he had a motive to design this deception? His denial stretches credulity to the breaking point.
In partial summary of his findings the Special Inquiry Oificer said:
“Respondent’s testimony as to his business connections and income, as to his belief relative to his place of birth, as to his adoption of a specific birth date, and as to his absences from the United States is contradicted, time and again by respondent’s own testimony or by other evidence of record. I am convinced that in all these matters, respondent knowingly and deliberately told less than the truth. His assertions that prior to these proceedings he had no knowledge of the false birth record, which had been created in his name in the Luzerne County records, is, in my view, devoid of plausibility. From my observation of respondent’s demeanor and upon appraisal of all his testimony, it is my finding that his claim that prior to January 20, 1958, he had always believed that he was born in Pittston, Pennsylvania, is unworthy of credence, and was, indeed, offered by respondent in these proceedings with full knowledge of its falsity. In the light of the early school records, I am convinced that the truth of the matter is that respondent, from the time he was old enough to understand, always knew that he was born in Italy. Since I find this portion of his testimony to be false, I further find that he has failed to establish that his failure to furnish the information required by Section 265 of the Immigration and Nationality Act was reasonably excusable or was not wilful. * * * ”
Accordingly, the Special Inquiry Officer, affirmed by the Board of Immigration Appeals, found that the appellant’s admitted failure to notify the Attorney General of his address or other information in compliance with 8 U.S.C.A. § 1305 in 1956 and 1957 was not reasonably excusable, was willful, and rendered him deportable under 8 U.S.C.A. § 1251 (a) (5). Appreciating that this officer had the benefit of appraising the credibility of the appellant and the witnesses as they appeared before him, and having considered the record we are not disposed to disturb the district court’s acceptance of that determination.
The appellant next contends that the Attorney General abused his discretion in not granting him a waiver of ex-cludability as provided in Section 7 of the Act of September 11,1957 (71 Stat. 640), 8 U.S.C.A. § 1251a. Simply stated and as applicable to this appellant that section provides that an alien who entered this country by fraud or misrepresentation or without proper documentation and who would, therefore, be subject to deportation under § 1251, may be saved from the application of that section by the exercise of discretion on the part of the Attorney General providing the alien is both the spouse of an American citizen' and otherwise admissible.
The appellant comes within the terms of § 1251a to the extent that he is one who has entered the country by fraud and is married to an American citizen. Whether he was “otherwise admissible at the time of entry” as required is another question.
Appellant contends that if he was not otherwise admissible it was only because when he re-entered the United States in April and May of 1956 he lacked proper documentation, i. e. Form 1-151, a card received by all aliens who register pursuant to 8 U.S.C.A. § 1305. He submits-that this deficiency may be waived under 8 C.F.R. § 242.7a which reads:
“§ 242.7a Waiver of documents; returning residents. Pursuant to the authority contained in section 211(b) of the act, an alien previously lawfully admitted to the United States for permanent residence,, who, upon return from a temporary absence of less than one year in a. country or countries of the Western Hemisphere, was excludable because of failure to have or to present a valid passport, immigrant visa, reentry permit, border crossing card, or other document required at the time of entry, may be granted a waiver of such requirement in the discretion of the district director, -or in deportation proceedings in the discretion of the special inquiry officer: Provided, That such alien (a) was not otherwise excludable at the time of entry, or (b) having been otherwise excludable at the time of entry is with respect thereto qualified for an exemption from deportability under section 7 of the act of September 11, 1957, and (c) is not otherwise subject to deportation. Denial of a waiver by the district director shall not be appealable but shall be without prejudice to renewal of an application and reconsideration in proceedings before a special inquiry officer." (Emphasis supplied.)
This regulation conditions the exercise of discretion on the alien being “not otherwise subject to deportation”. But the appellant was otherwise deportable at the time of both entries (April 30 and May 5, 1956) under 8 U.S.C.A. § 1251 (a) (5) because he had failed to give required information to the Attorney General in January 1956 in compliance with 8 U.S.C.A. § 1305. Therefore under this regulation the Special Inquiry Officer was without authority to exercise his discretion to waive the appellant’s lack of documentation.
It follows that the appellant was not “otherwise admissible” under 8 U.S.C.A. § 1251a when he entered the country in 1956. Appellant’s failure to demonstrate that he was “otherwise admissible” results in his being ineligible as a matter of law for the exercise of the Attorney General’s discretion because he has failed to meet the minimal statutory prerequisites.
Appellant further contends that the Attorney General has abused his discretion in not allowing him to depart voluntarily as provided in 8 U.S.C.A. § 1254(e).
Because the appellant is subject to deportation under 8 U.S.C.A. § 1251(a) (5) the provisions of 8 U.S.C.A. § 1254(e) require that he meet the test of 8 U.S. C.A. § 1254(a) (5) which reads:
“(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the ease of an alien who—
* * * * * *
“(5) is deportable under paragraphs (4)-(7), (11), (12), (14)-(17), or (18) of section 1251(a) of this title for an act committed or status acquired subsequent to such entry into the United States or having last entered the United States within two years prior to, or at any time after June 27, 1952, is deport-able under paragi'aph (2) of section 1251(a) of this title as a person who has remained longer in the United States than the period for which he was admitted; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all such period he has been and is a person of good moral character; has not been served with a final order of deportation issued pursuant to this chapter in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence.”
As a person who is deportable under § 1251(a) (5) the appellant must meet the critical requirements (1) that he has been “physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act” constituting a ground for deportation and (2) “proves that during all of such period he has been and is a person of good moral character.” The acts complained of are his failure in January of 1956 and January of 1957 to provide the Attorney General with his address and other information as required by § 1305. Manifestly he cannot satisfy the requirement of having been physically present in the United States for a continuous period of not less than ten years immediately following the commission of such acts. It follows that he is similarly unable to meet the additional requirement of proving himself to have been a person of good moral character during all of such ten years.
Appellant’s last application is for preexamination under 8 C.F.R. § 235a.l which reads as follows:
“§ 235a.l. Application. Preexamination may be authorized for any alien, except a citizen of Canada, Mexico, or islands adjacent to the United States who files an application for preexamination on Form 1-63 prior to December 1, 1958, intending to apply to a consular officer of the United States in Canada for an immigrant visa and who believes that he will be admissible to the United States under all the provisions of the immigration laws if in possession of an immigrant visa, or that he is prima facie eligible for a waiver of excludability under section 5 or 7 of the act of September 11, 1957; that he will be able to obtain the prompt issuance of an immigrant visa, and that he is a person of good moral character. Any alien who files Form 1-63 shall be deemed to have thereby abandoned his nonimmigrant status in the United States. Form 1-63 shall be submitted to the office of the Immigration and Naturalization Service having jurisdiction over the applicant’s place of residence, and may be filed separately or in conjunction with a petition for non-quota or preference quota status under Part 204 or 205 of this chapter. If the applicant is under deportation proceedings, the application shall be made to the special inquiry officer during the hearing pursuant to Part 242 of this chapter. The applicant shall be notiified of the decision, and if the application is denied, of the reasons therefor and of his right to appeal under Part 3 or 103 of this chapter.”
He fails to meet the requirements of that regulation because he has not shown himself to be a person of good moral character and cannot demonstrate that he is prima facie eligible for a waiver of excludability in view of his ineligibility for that relief under 8 U.S.C.A. § 1251a as determined by the Special Inquiry Officer.
Under 8 C.F.R. 235a.2 the application for preexamination had to be completed before July 1, 1959. Obviously this was not done in this case.
In his findings the Special Inquiry Officer made reference to the fact that appellant had been subpoenaed to appear before the Joint Legislative Committee of the State of New York on Government Operations (also known as the Watchdog Committee) on January 9, 1958 and had invoked his constitutional right under the Fifth Amendment to decline to answer on the advice of counsel. The findings also noted the appellant’s appearance before a Federal Grand Jury in New York City on January 7, 1958, when he took the same action. The Special Inquiry Officer also observed that at the deportation hearings appellant’s counsel asked and the appellant answered the same questions he had refused to answer before the New York State Committee. The appellant asserted that similar references, made at each stage of the proceedings by the Board of Immigration Appeals, the Attorney General and the District Judge, indicated that his refusal to answer originally resulted in his being regarded as undeserving of the consideration to which he would have otherwise been entitled had he not invoked the Fifth Amendment. The appellant contended that he was claiming no more than his constitutional right and that any derogative inference drawn therefrom in the deportation proceedings was an abuse of discretion.
While it is true that his conduct before investigative bodies was the subject of comment, such conduct was patently not determinative of the decisions which find ample basis in this record. The comments made were not prejudicial to the appellant so as to constitute abuse of discretion.
The appellant also suggests that newspapers sensationally linked him to a meeting of various individuals at the home of Joseph Barbara in Apalachin, New York, on November 14, 1957, and that this circumstance was noticed in these proceedings to his prejudice. There is no evidence to support such an implication.
Finally, the appellant attacks the judgment of the district court because the judge said he felt “that in view of all the circumstances and the atmosphere surrounding the case the [appellant] has not sustained the burden placed upon him under the law and that the Government officials having charge of the inquiry did their full duty.” He claims that the court “should have reviewed the record, evaluated the evidence or lack of evidence pertinent to the issue and should have reached its own conclusion as to whether the appellant was or was not entitled to the discretionary relief provided for by the Act.” He failed to show that the court did less.
The right of review by the court of the action of the administrative agency in this case is limited to whether the decision of deportability was based on reasonable, substantial and probative evidence and was neither arbitrary, capricious nor violative of procedural due process. United States ex rel. Brzovich v. Holton, 7 Cir., 1955, 222 F.2d 840, 842; Fougherouse v. Brownell, D.C.Or.1958, 163 F.Supp. 580, 584.
The expression used by the trial judge in his opinion that he was “not unmindful of the facts of the case as expressed in the written record of the testimony and the official records as to other phases of the case contained in the various documents” after his allusion to the “hundreds of pages of testimony and numerous exhibits [that] have been offered in evidence”, indicates that he accorded the appellant full judicial review. Our own analysis of the underlying evidence leads us to the conclusion that his order for summary judgment in favor of the respondent and dismissal of the petition for review was justified.
The Order of the District Court will be affirmed.
. “§ 1251. Deportable aliens — General classes
“(a) Any alien in the United States (including alien crewman) shall, upon the order of the Attorney General, be deported who—
3: $ & $ 9
“(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States;”
. “§ 1251.
“(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
* * * * *
“(5) has failed to comply with the provisions of section 1305 of this title unless
he establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful, or has been convicted under section 1306 (e) of this title, or under section 36(c) of the Alien Registration Act, 1940, or has been convicted of violating or conspiracy to violate any provision of sections 611-621 of Title 22 or has been convicted under section 1546 of Title 18;”
. “§ 1305. Change of address
“Every alien required to be registered under this subchapter, or who was required to be registered under the Alien Registration Act, 1940, as amended, who is within the United States on the first day of January following the effective date of this chapter, or on the first day of January of each succeeding year shall, within thirty days following such dates, notify the Attorney General in -writing of Ms current address and furnish such additional information as may by regulations be required by the Attorney General. Any such alien shall likewise notify the Attorney General in writing of each change of address and new address within ten days from the date of such change. Any such alien who is temporarily absent from the United States on the first day of January following the effective date of this chapter, or on the first day of January of any succeeding year shall furnish Ms current address and other information as required by this section within ten days after his return. Any such alien in the United States in a lawful temporary residence status shall in like manner also notify the Attorney General in writing of his address at the expiration of each three-month period (luring which he remains in the United States regardless of whether there has been any change of address. In the case of an alien for whom a parent or legal guardian is required to apply for registration, the notice required by this section shall be given by such parent or legal guardian.”
. 3251
“ (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — •
“(1) at the time of entry was within one or more of the classes of aliens ex-cludable by the law existing at the time of such entry;”
. The first decision of the Board of Immigration Appeals of August 6, 1958 was reviewed by the Attorney General who remanded the case to the Board by his opinion and order of August 3,8, 1958. The final decision of the Board was rendered on September 2, 1958.
. Exhibit 21 is a certified copy of a manifest record of appellant’s entry into the United States at New York, New York on December 21, 1903. It shows that he was two months of age and was accompanied by his mother, two sisters and a brother, all of whom were destined to Angelo Bufalino, husband and father in Pittston, Pennsylvania.
. Her sister testified that their father died on September 23, 1904, according to the markings on his tombstone in Pittston.
. “Commonwealth of] Pennsylvania 1 SS.: County of Luzerne J
Affidavit
being duly sworn by law, deposes and says that he was born on the day of in That he presently resides at Your affiant further avers that he has known Russell Bufalino since years, and has been closely associated with him in, and through all of these years, he has known the said Russell Bufalino to be a person of high moral character, an outstanding citizen of the Commonwealth and a person of good repute. Your affiant further avers that he has never heard anything detrimental about the said Russell Bufalino from any
of the persons that he knows who also know the aforementioned Russell Bufalino. Your affiant further avers that he is engaged in the business of and has been for the last years. Sworn to and subscribed before me this day of, 1958. ft
. “(f) For the purposes of this chapter— “No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—
* * * * *
“(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;”
. “§ 1251a. Aliens deportable for fraud or misrepresentation; adjustment of status of certain aliens; conditions; waiver of ground of inadmissibility.
“The provisions of section 1251 of this title relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who (A) is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence; or (B) was admitted to the United States between December 22, 1945, and November 1, 1954, both dates inclusive, and misrepresented his nationality, place of birth, identity, or residence in applying for a visa: Provided, That such alien described in clause (B) shall establish to the satisfaction of the Attorney General that the misrepresentation was- predicated upon the alien’s fear of persecution because of race, religion, or political opinion if repatriated to his: former home or residence, and was not committed for the purpose of evading the-quota restrictions of the immigration laws or an investigation of the alien at the-place of his former home, or residence, or elsewhere. After September 11, 1957, any alien who is the spouse, parent, or child of a United States citizen or of an: alien lawfully admitted for permanent residence and who is excludable because (1) he seeks, has sought to procure, or-has procured, a visa or other documentation, or entry into the United States, by fraud or misrepresentation, or (2) he-admits the commission óf perjury in connection therewith, shall on and after September 11, 1957, be granted a visa and' admitted to the United States for permanent residence, if otherwise admissible, if the Attorney General in his discretion/ has consented to the alien’s applying or reapplying for a visa and for admission, to the United States.”
. It also serves as evidence of an alien’s, lawful admission to the United States. 8 C.F.R. 204.1(c) (1).
. Although appellant’s brief implies that he has applied for a waiver of documentary deficiency such is not the case. The Special Inquiry Officer has stated, “No application has been made in this case for such waiver but if one were filed I would deny [it] in the exercise of administrative discretion because I do not find that there was good cause for [his] failure to present the required document, since he did not act in good faith in effecting his entry but indeed procured Ms entry by fraud.”
. And even had he done so the favorable exercise of discretion under § 1251a would not be assured because “the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension [of deportation]. Suspension of
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re REARDANZ. REARDANZ v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD, CONN., et al.
No. 6279.
Circuit Court of Appeals, Seventh Circuit.
July 3, 1937.
Luther B. Bratton, of Kankakee, 111.; for appellant.
Arthur S. Lytton, F. W. Bull, and Olaf A. Olson, all of Chicago, 111., and Vernon G. Butz, of Kankakee, 111., for appellee Connecticut Mut. Life Ins. Co.
John A. Mayhew, of Kankakee, 111., for appellee Edna Westfall Prince.
Before SPARKS, MAJOR, and ALSCHULER, Circuit Judges.
MAJOR, Circuit Judge.
This appeal is from an order of the District Court entered the 26th day of April, 1937, dismissing appellant’s proceedings under section 75 of the Bankruptcy Act as amended (11 U.S.C.A. § 203).
On March 19, 1935, mortgage foreclosure proceedings were instituted by each of appellees against appellant in the circuit court of Kankakee county, Illinois, with reference to certain land then owned by appellant. By Virtue of a decree of foreclosure entered in said court, the land described in each of said mortgages was sold by the master in chancery of said county on July 24, 1935, the mortgagees in each instance being the purchasers at said sale,, and a certificate of sale was issued to each of said purchasers by the master in chancery. No redemption having been made by appellant within twelve months after said sale, as provided by the Illinois Redemption Statute nor thereafter by any other person authorized to redeem under said statute, a deed was issued by the master on November 2, 1936, to the appellee the Connecticut Mutual Life Insurance Company, to the property purchased by it at said foreclosure sale, and a like deed was issued by the master on October 26, 1936, to the appellee Prince, to the property purchased by her at the foreclosure sale. In the Prince foreclosure proceeding a receiver was appointed by the state court on September 11, 1935, who took over possession of the property described in this mortgage.
Appellant in April, 1935, filed his petition for relief under section 75, but after subsection (s) of that act was declared unconstitutional by th.e Supreme Court, appellant amended his petition and proceeded under the provisions of the general Bankruptcy Act. An adjudication was had on August 5, 1935, the case referred to a referee, a trustee was elected, and proceedings were had in the usual manner. In February, 1936, the trustee reported to the referee that there was no equity in the lands included in the mortgages herein referred to and requested that he be permitted to abandon the same. The referee approved the trustee’s petition in this respect, and the property was abandoned as worthless to the estate. The same character of an order was entered with reference to the personal property of appellant.
In February, 1936, the referee filed his final report in the District Court showing no assets, which report was approved by the court, the trustee discharged, and 'the case declared closed. Appellant, however, made no application for discharge. On August 3, 1936, appellant filed in the District Court a petition for reinstatement under section 75 (s) as amended August 28, .1935, § 6 (11 U.S.C.A. § 203(s). Without notice to appellees the District Court on August 3, 1936, vacated the adjudication in general bankruptcy, which had been entered on July 5, 1935, and granted appellant leave to file his amended petition under the new subsection (s). Appellant filed his amended petition, a new order of adjudication was entered, and the cause referred to the Conciliation Commissioner.
On October 1, 1936, the Conciliation Commissioner executed a lease to appellant for the property included in the mortgage of the Life Insurance Company, which lease expires February 28, 1938. When appellee learned of this purported lease, it entered a motion in the District Court that the proceedings of appellant be dismissed so far as its property was concerned, and that the lease of October 1, 1936, be declared null and void. After hearing, the District Court on March 24, 1937, entered an order declaring the lease null and void, and held that the court had no jurisdiction over the property. No appeal was taken from that order. Following this the Insurance Company obtained a judgment for possession on April 1, 1937, in a forcible entry and detainer action in the state court from which no appeal was taken.
On April 9, 1937, without notice to appellees, the court entered a temporary restraining order staying further proceedings in the state court until a full hearing could be had with a view of determining if there was any relief available for appellant under section 75 (s). On April 16, 1937, a hearing was had by the court in which all the parties were present, and on April 26 an order was entered vacating the temporary restraining order of April 9, 1937, denying motion of appellant to vacate the order of March 24, 1937, and dismissing appellant’s proceedings. It is from this order of dismissal the case is brought here.
We have before us a written opinion by Judge Lindley who had the case in the District- Court and who evidently brushed aside all technical questions which might be raised as to the right of appellant for relief under the act in question. In fact, the • record bears abundant proof of thé diligent and sincere effort made by him to ascertain some means by which relief might be afforded. In this effort he went far beyond the mere legal requirements of the situation. After this effort on his part he found 'the court had no jurisdiction of the property in question and dismissed the proceedings. In this we think he was entirely correct. Under the most liberal construction which can be placed upon the act in question, we do not see how- appellant could hope for any different results.
On August 3; 1936, when appellant filed his request for reinstatement under section 75(s), appellant’s right, of redemption of the mortgaged properties had expired, and he had no title, either equitable or legal, in tlie property in question. He had no interest in it of any kind, and he had no right of possession. It was suggested by counsel for appellant in the oral argument that the mortgage foreclosure proceedings in the state court could not be given effect, and that appellees acquired no title by reason of such proceedings. Such contention as applied to the facts here presented cannot be sustained.
The purpose of the act, no doubt, is to afford relief to farmers in distressed financial circumstances, but it does not follow from this that the one who asks for such relief is without obligation to make some attempt to help himself .and to deal equitably with his creditors. The record discloses that appellant not only had paid no interest on the mortgages in question, but for at least five years had neglected to pay taxes on the mortgaged property. On two occasions he permitted the property to be forfeited’ for nonpayment of taxes. With one minor exception appellees have received no income from the money which they loaned him. He has on numerous occasions ignored the orders of the state court with reference to possession of the land, and at least on two occasions has been adjudged in contempt of court and sentenced to serve in jail. A corps of deputy sheriffs have been stationed on the premises in question to prevent appellant from taking possession in violation of the court’s mandate. While these matters may not affect the legal rights of the parties, yet they need- not be passed unnoticed by a court of equity.
During the pendency of the appeal this court, on application of appellant, granted a supersedeas order. We now think we acted under a misapprehension of the existing facts, and the order was improvidently allowed.
This order is vacated, and the order of the District Court dismissing the proceedings is 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:
|
sc_adminaction
|
068
|
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.
McNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, et al. v. HAITIAN REFUGEE CENTER, INC., et al.
No. 89-1332.
Argued October 29, 1990
Decided February 20, 1991
Stevens, J., delivered the opinion of the Court, in which MARSHALL, Blackmun, O’Connor, Kennedy, and Souter, JJ., joined, and in Parts I, II, III, and IV of which White, J., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 499.
Michael R. Dreeben argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assist ant Attorney General Gerson, Deputy Solicitor General Shapiro, and David V. Bernal.
Ira J. Kurzban argued the cause for respondents. With him on the brief were Bruce J. Winick, Irwin P. Stotzky, and Edward Copeland.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Joseph R. Austin, John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Fredric D. Woocher, Robert A. Ginsburg, Niels Frenzen, Jorge L. Fernandez, and Richard K. Mason; for the American Bar Association by John J. Curtin, Jr., Robert E. Juceam, Sandra M. Lipsman, Craig H. Baab, and Carol L. Wolchok; for the American Federation of Labor and Congress of Industrial Organizations by Michael Rubin, Marsha S. Ber-zon, and Laurence Gold; and for the Farm Labor Alliance et al. by Peter A. Schey, Wayne H. Matelski, Monte B. Lake, Ralph Santiago Abascal, and Robert Gibbs.
Justice Stevens
delivered the opinion of the Court.
The Immigration Reform and Control Act of 1986 (Reform Act) constituted a major statutory response to the vast tide of illegal immigration that had produced a “shadow population” of literally millions of undocumented aliens in the United States. On the one hand, Congress sought to stem the tide by making the plight of the undocumented alien even more onerous in the future than it had been in the past; thus, the Reform Act imposed criminal sanctions on employers who hired undocumented workers and made a number of federally funded welfare benefits unavailable to these aliens. On the other hand, in recognition that a large segment of the shadow population played a useful and constructive role in the American economy, but continued to reside in perpetual fear, the Reform Act established two broad amnesty programs to allow existing undocumented aliens to emerge from the shadows.
The first amnesty program permitted any alien who had resided in the United States continuously and unlawfully since January 1, 1982, to qualify for an adjustment of his or her status to that of a lawful permanent resident. See 100 Stat. 3394, as amended, 8 U. S. C. § 1255a. The second program required the Attorney General to adjust the status of any alien farmworker who could establish that he or she had resided in the United States and performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986, provided that the alien could also establish his or her admissibility in the United States as an immigrant. The Reform Act required the Attorney General first to adjust the status of these aliens to “[sjpecial agricultural workers” (SAW’s) lawfully admitted for temporary residence, see 100 Stat. 3417, as amended, 8 U. S. C. § 1160(a) (1), and then eventually to aliens lawfully admitted for permanent residence, see § 1160(a)(2).
This case relates only to the SAW amnesty program. Although additional issues were resolved by the District Court and the Court of Appeals, the only question presented to us is whether § 210(e) of the Immigration and Nationality Act (INA), which was added by § 302(a) of the Reform Act and sets forth the administrative and judicial review provisions of the SAW program, see 8 U. S. C. § 1160(e), precludes a federal district court from exercising general federal-question jurisdiction over an action alleging a pattern or practice of procedural due process violations by the Immigration and Naturalization Service (INS) in its administration of the SAW program. We hold that given the absence of clear congressional language mandating preclusion of federal jurisdiction and the nature of respondents’ requested relief, the District Court had jurisdiction to hear respondents’ constitutional and statutory challenges to INS procedures. Were we to hold otherwise and instead require respondents to avail themselves of the limited judicial review procedures set forth in § 210(e) of the INA, meaningful judicial review of their statutory and constitutional claims would be foreclosed.
I
The Reform Act provided three important benefits to an applicant for SAW status. First, the mere filing of a “non-frivolous application” entitled the alien to a work authorization that would remain valid during the entire period that the application was being processed. See 8 U. S. C. § 1160(d)(2)(B). Second, regardless of the disposition of the application, the Reform Act expressly prohibited the Government from using any information in the application for enforcement purposes. Thus, the application process could not be used as a means of identifying deportable aliens; rather, the initiation of a deportation proceeding had to be based on evidence obtained from an independent source. See § 1160(b)(6). Third, if SAW status was granted, the alien became a lawful temporary resident, see § 1160(a)(1), and, in due course, could obtain the status of a permanent resident, see § 1160(a)(2).
In recognition that the fear of prosecution or deportation would cause many undocumented aliens to be reluctant to come forward and disclose their illegal status, the Reform Act directed the Attorney General to enlist the assistance of a variety of nonfederal organizations to encourage aliens to apply and to provide them with counsel and assistance during the application process. These “qualified... designated entities” (QDE’s), which included private entities such as farm labor organizations and associations of agricultural employers as well as qualified state, local, and community groups, were not allowed to forward applications for SAW status to the Attorney General unless the applicant consented. See §§ 1160(b)(2), (b)(4).
The Reform Act provided that SAW status applications could be filed with a specially created legalization office (LO), or with a QDE, which would forward applications to the appropriate LO, during an 18-month period commencing on June 1, 1987. See § 1160(b)(1)(A). Regulations adopted by the INS to administer the program provided for' a personal interview of each applicant at an LO. See 8 CFR § 210.2(c) (2)(iv) (1990). In the application, the alien had to prove by a preponderance of the evidence that he or she worked the requisite 90 days of qualifying seasonal agricultural services. See §§ 210.3(a), (b)(1). To meet the burden of proof, the applicant was required to present evidence of eligibility independent of his or her own testimony. See § 210.3(b)(2). The applicant could meet this burden through production of his or her employer’s payroll records, see 8 U. S. C. § 1160(b) (3)(B)(ii), or through submission of affidavits “by agricultural producers, foremen, farm labor contractors, union officials, fellow employees, or other persons with specific knowledge of the applicant’s employment,” see 8 CFR §210.3(c)(3) (1990). At the conclusion of the interview and of the review of the application materials, the LO could deny the application or make a recommendation to a regional processing facility that the application be either granted or denied. See §210.1(q). A denial, whether at the regional or local level, could be appealed to the legalization appeals unit, which was authorized to make the final administrative decision in each individual case. See § 103.3(a)(2)(iii).
The Reform Act expressly prohibited judicial review of such a final administrative determination of SAW status except as authorized by § 210(e)(3)(A) of the amended INA. That subsection permitted “judicial review of such a denial only in the judicial review of an order of exclusion or deportation.” In view of the fact that the courts of appeals constitute the only fora for judicial review of deportation orders, see 75 Stat. 651, as amended, 8 U. S. C. § 1105a, the statute plainly foreclosed any review in the district courts of individual denials of SAW status applications. Moreover, absent initiation of a deportation proceeding against an unsuccessful applicant, judicial review of such individual determinations was completely foreclosed.
r-H I — I
This action was filed in the District Court for the Southern District of Florida by the Haitian Refugee Center, the Migration and Refugee Services of the Roman Catholic Diocese of Palm Beach, and 17 unsuccessful individual SAW applicants. The plaintiffs sought relief on behalf of a class of alien farmworkers who either had been or would be injured by unlawful practices and policies adopted by the INS in its administration of the SAW program. The complaint alleged that the interview process was conducted in an arbitrary fashion that deprived applicants of the due process guaranteed by the Fifth Amendment to the Constitution. Among other charges, the plaintiffs alleged that INS procedures did not allow SAW applicants to be apprised of or to be given opportunity to challenge adverse evidence on which denials were predicated, that applicants were denied the opportunity to present witnesses on their own behalf, that non-English speaking Haitian applicants were unable to communicate effectively with LO’s because competent interpreters were not provided, and that no verbatim recording of the interview was made, thus inhibiting even any meaningful administrative review of application denials by LO’s or regional processing facilities. See App. 44-45; Haitian Refugee Center, Inc. v. Nelson, 694 F. Supp. 864, 867 (SD Fla. 1988).
After an evidentiary hearing, the District Court ruled that it had jurisdiction, that the case should proceed as a class action, and that a preliminary injunction should issue. The court recognized that individual aliens could not contest the denial of their SAW applications “unless and until the INS in-stitut[ed] deportation proceedings against them,” but accepted jurisdiction because the complaint “does not challenge any individual determination of any application for SAW status but rather attacks the manner in which the entire program is being implemented, allegations beyond the scope of administrative review.” On the merits, the District Court found that a number of INS practices violated the Reform Act and were unconstitutional, and entered an injunction requiring the INS to vacate large categories of denials, and to modify its practices in certain respects.
The Court of Appeals affirmed. On the merits, it upheld all of the findings and conclusions of the District Court, and it also rejected each of the Government’s jurisdictional arguments. Relying on earlier Circuit precedent, it held that the statutory bar to judicial review of individual determinations was inapplicable:
“In Jean v. Nelson, 727 F. 2d 957 (11th Cir. 1984) (in banc), aff’d, 472 U. S. 846... (1985), we reaffirmed that section 106 of the INA (Codified at 8 U. S. C. § 1105a) does not deprive district courts of jurisdiction to review allegations of systematic abuses by INS officials. Jean, 727 F. 2d at 980. We explained that to postpone ‘judicial resolution of a disputed issue that affects an entire class of aliens until an individual petitioner has an opportunity to litigate it on habeas corpus would foster the very delay and procedural redundancy that Congress sought to eliminate in passing § 1105a.’ Id. In this action, appellees do not challenge the merits of any individual status determination; rather... they contend that defendants’ policies and practices in processing SAW applications deprive them of their statutory and constitutional rights.” Haitian Refugee Center, Inc. v. Nelson, 872 F. 2d 1555, 1560 (CA11 1989).
In their certiorari petition, petitioners did not seek review of the District Court’s rulings on the merits or the form of its injunctive relief. Our grant of certiorari is therefore limited to the jurisdictional question.
h — I I — I
We preface our analysis of petitioners position with an identification of matters that are not in issue. First, it is undisputed that SAW status is an important benefit for a previously undocumented alien. This status not only protects the alien from deportation; it also creates job opportunities that are not available to an alien whose application is denied. Indeed, the denial of SAW status places the alien in an even worse position than he or she was in before the Reform Act was passed because lawful employment opportunities are no longer available to such persons. Thus, the successful applicant for SAW status acquires a measure of freedom to work and to live openly without fear of deportation or arrest that is markedly different from that of the unsuccessful applicant. Even disregarding the risk of deportation, the impact of a denial on the opportunity to obtain gainful employment is plainly sufficient to mandate constitutionally fair procedures in the application process. At no time in this litigation have petitioners asserted a right to employ arbitrary procedures, or questioned their obligation to afford SAW status applicants due process of law.
Nor, at this stage of the litigation, is there any dispute that the INS routinely and persistently violated the Constitution and statutes in processing SAW applications. Petitioners do not deny that those violations caused injury in fact to the two organizational plaintiffs as well as to the individual members of the plaintiff class. Although it does not do so explicitly, petitioners’ argument assumes that the District Court would have federal-question jurisdiction over the entire case if Congress had not, through the Reform Act, added § 210(e) to the INA. The narrow issue, therefore, is whether § 210(e), which bars judicial review of individual determinations except in deportation proceedings, also forecloses this general challenge to the INS’ unconstitutional practices.
IV
Petitioners’ entire jurisdictional argument rests on their view that respondents’ constitutional challenge is an action seeking “judicial review of a determination respecting an application for adjustment of status” and that district court jurisdiction over the action is therefore barred by the plain language of § 210(e)(1) of the amended INA. See 8 U. S. C. § 1160(e)(1). The critical words in § 210(e)(1), however, describe the provision as referring only to review “of a determination respecting an application” for SAW status (emphasis added). Significantly, the reference to “a determination” describes a single act rather than a group of decisions or a practice or procedure employed in making decisions. Moreover, when § 210(e)(3), see 8 U. S. C. § 1160(e)(3), further clarifies that the only judicial review permitted is in the context of a deportation proceeding, it refers to “judicial review of such a denial” — again referring to a single act, and again making clear that the earlier reference to “a determination respecting an application” describes the denial of an individual application. We therefore agree with the District Court’s and the Court of Appeals’ reading of this language as describing the process of direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications.
This reading of the Reform Act’s review provision is supported by the language in § 210(e)(3)(B) of the INA, which provides that judicial review “shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.” 8 U. S. C. § 1160(e)(3)(B). This provision incorporates an assumption that the limited review provisions of § 210(e) apply only to claims that have been subjected to administrative consideration and that have resulted in the creation of an adequate administrative record. However, the record created during the SAW administrative review process consists solely of a completed application form, a report of medical examination, any documents or affidavits that evidence an applicant’s agricultural employment and residence, and notes, if any, from an LO interview — all relating to a single SAW applicant. Because the administrative appeals process does not address the kind of procedural and constitutional claims respondents bring in this action, limiting judicial review of these claims to the procedures set forth in § 210(e) is not contemplated by the language of that provision.
Moreover, the “abuse-of-discretion” standard of judicial review under § 210(e)(3)(B) would make no sense if we were to read the Reform Act as requiring constitutional and statutory challenges to INS procedures to be subject to its specialized review provision. Although the abuse-of-discretion standard is appropriate for judicial review of an administrative adjudication of the facts of an individual application for SAW status, such a standard does not apply to constitutional or statutory claims, which are reviewed de novo by the courts.' The language of § 210(e)(3)(B) thus lends substantial credence to the conclusion that the Reform Act’s review provision does not apply to challenges to INS' practices and procedures in administering the SAW program.
Finally, we note that had Congress intended the limited review provisions of § 210(e) of the INA to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congréss could, for example, have modeled § 210(e) on the more expansive language in the general grant of district court jurisdiction under Title II of the INA by channeling into the Reform Act’s special review procedures “all causes... arising under any of the provisions” of the legalization program. 66 Stat. 230, 8 U. S. C. § 1329. It moreover could have modeled § 210(e) on 38 U. S. C. § 211(a), which governs review of veterans’ benefits claims, by referring to review “on all questions of law and fact” under the SAW legalization program.
Given Congress’ choice of statutory language, we conclude that challenges to the procedures used by INS do not fall within the scope of § 210(e). Rather, we hold that § 210(e) applies only to review of denials of individual SAW applications. Because respondents’ action does not seek review on the merits of a denial of a particular application, the District Court’s general federal-question jurisdiction under 28 U. S. C. §1331 to hear this action remains unimpaired by § 210(e).
V
Petitioners place their principal reliance on our decision in Heckler v. Ringer, 466 U. S. 602 (1984). The four respondents in Ringer wanted to establish a right to reimbursement under the Medicare Act for a particular form of surgery that three of them had undergone and the fourth allegedly needed. They sought review of the Secretary’s policy of refusing reimbursement for that surgery in an original action filed in the District Court, without exhausting the procedures specified in the statute for processing reimbursement claims. The District Court dismissed the case for lack of jurisdiction because the essence of the complaint was a claim of entitlement to payment for the surgical procedure. With respect to the three respondents who had had the surgery, we concluded that “it makes no sense” to construe their claims “as anything more than, at bottom, a claim that they should be paid for their BCBR [bilateral carotid body resection] surgery,” id., at 614, since success in their challenge of the Secretary’s policy denying reimbursement would have the practical effect of also deciding their claims for benefits on the merits. “Indeed,” we noted, “the relief that respondents seek to redress their supposed ‘procedural’ objections is the invalidation of the Secretary’s current policy and a ‘substantive.’ declaration from her that the expenses of BCBR surgery are reimbursable under the Medicare Act.” Ibid. Concluding that respondents’ judicial action was not “collateral” to their claims for benefits, we thus required respondents first to pursue their administrative remedies. In so doing, we found it significant that respondents, even if unsuccessful before the agency, “clearly have an adequate remedy in § 405(g) for challenging [in the courts] all aspects of the Secretary’s denial of their claims for payment for the BCBR surgery.” Id., at 617.
Unlike the situation in Heckler, the individual respondents in this action do not seek a substantive declaration that they are entitled to SAW status. Nor would the fact that they prevail on the merits of their purportedly procedural objections have the effect of establishing their entitlement to SAW status. Rather, if allowed to prevail in this action, respondents would only be entitled to have their case files reopened and their applications reconsidered in light of the newly prescribed INS procedures.
Moreover, unlike in Heckler, if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures notwithstanding the review provisions of § 210(e) of the amended IN A. It is presumable that Congress legislates with knowledge of our basic rules of statutory construction, and given our well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action, see Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670 (1986), coupled with the limited review provisions of § 210(e), it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review.
Several aspects of this statutory scheme would preclude review of respondents’ application denials if we were to hold that the District Court lacked jurisdiction to hear this challenge. Initially, administrative or judicial review of an agency decision is almost always confined to the record made in the proceeding at the initial decisionmaking level, and one of the central attacks on INS procedures in this litigation is based on the claim that such procedures do not allow applicants to assemble adequate records. As the District Court found, because of the lack of recordings or transcripts of LO interviews and the inadequate opportunity for SAW applicants to call witnesses or present other evidence on their behalf, the administrative appeals unit of the INS, in reviewing the decisions of LO's and regional processing facilities, and the courts of appeals, in reviewing SAW denials in the context of deportation proceedings, have no complete or meaningful basis upon which to review application determinations.
Additionally, because there is no provision for direct judicial review of the denial of SAW status unless the alien is later apprehended and deportation proceedings are initiated, most aliens denied SAW status can ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a complete denial of judicial review for most undocumented aliens.
Finally, even in the context of a deportation proceeding, it is unlikely that a court of appeals would be in a position to provide meaningful review of the type of claims raised in this litigation. To establish the unfairness of the INS practices, respondents in this case adduced a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application. Not only would a court of appeals reviewing an individual SAW determination therefore most likely not have an adequate record as to the pattern of INS’ allegedly unconstitutional practices, but it also would lack the factfinding and record-developing capabilities of a federal district court. As the American Bar Association as amicus points out, statutes that provide for only a single level of judicial review in the courts of appeals “are traditionally viewed as warranted only in circumstances where district court factfinding would unnecessarily duplicate an adequate administrative record — circumstances that are not present in ‘pattern and practice’ cases where district court factfinding is essential [given the inadequate administrative record].” Brief for American Bar Association as Amicus Curiae 7. It therefore seems plain to us, as it did to the District Court and the Court of Appeals, that restricting judicial review to the courts of appeals as a component of the review of an individual deportation order is the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.
Decision in this case is therefore supported by our unanimous holding in Bowen, supra. In that case we rejected the Government’s contention that two sections of the Social Security Act, 42 U. S. C. §301 et seq. (1982 ed.), barred judicial review of the validity of a regulation governing the payment of Medicare benefits. We recognized that review of individual determinations of the amount due on particular claims was foreclosed, but upheld the collateral attack on the regulation itself, emphasizing the critical difference between an individual “amount determination” and a challenge to the procedures for making such determinations:
“The reticulated statutory scheme, which carefully details the forum and limits of review of ‘any determination... of... the amount of benefits under part A,’ 42 U. S. C. § 1395ff(b)(l)(C) (1982 ed., Supp. II), and of the ‘amount of... payment’ of benefits under Part B, 42 U. S. C. § 1395u(b)(3)(C), simply does not speak to challenges mounted against the method by which such amounts are to be determined rather than the determinations themselves. As the Secretary has made clear, ‘the legality, constitutional or otherwise, of any provision of the Act or regulations relevant to the Medicare Program’ is not considered in a ‘fair hearing’ held by a carrier to resolve a grievance related to a determination of the amount of a Part B award. As a result, an attack on the validity of a regulation is not the kind of administrative action that we described in Erika as an ‘amount determination’ which decides ‘the amount of the Medicare payment to be made on a particular claim’ and with respect to which the Act impliedly denies judicial review. 456 U. S., at 208.” 476 U. S., at 675-676 (emphasis in original).
Inherent in our analysis was the concern that absent such a construction of the judicial review provisions of the Medicare statute, there would be “no review at all of substantial statutory and constitutional challenges to the Secretary’s administration of Part B of the Medicare program.” Id., at 680.
As we read the Reform Act and the findings of the District Court, therefore, this case is controlled by Bowen rather than by Heckler. The strong presumption in favor of judicial review of administrative action is not overcome either by the language or the purpose of the relevant provisions of the Reform Act.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Chief Justice Rehnquist,
with whom Justice Scalia joins, dissenting.
Congress has carefully limited the judicial review available under the Immigration Reform and Control Act of 1986 (Reform Act) in language which “he who runs may read.” The Court, with considerable and obvious effort, finds a way to avoid this limitation, because to apply the statute as written could bar judicial review of respondents’ constitutional claims. The statute as written is, in my view, constitutional, and there is therefore no need to rewrite it.
I — I
The relevant provisions of the Reform Act dealing with administrative and judicial review are found in 8 U. S. C. § 1160(e):
“(1) Administrative and judicial review
“There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
“(2) Administrative review
“(A) Single level of administrative appellate review
“The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination
“(3) Judicial review
“(A) Limitation to review of exclusion or deportation
“There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 1105a of this title.”
The first of the quoted sentences states, as clearly as any language can, that judicial review of a “determination respecting an application for adjustment of status under this section” may not be had except in accordance with the provisions of the subsection. The plain language of subsection (3)(A) provides that judicial review of a denial may be had only in connection with review of an order of exclusion or deportation. The Court chooses to read this language as dealing only with “direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications.” Ante, at 492. But the accepted view of judicial review of administrative action generally— even when there is no express preclusion provision as there is in the present statute — is that only “final actions” are reviewable in court. The Administrative Procedure Act provides:
“[Fjinal agency action for which there is no other adequate remedy in a court [is] subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly re viewable is subject to review on the review of the final agency action.” 5 U. S. C. §704.
The Court’s reasoning is thus a classic non sequitur. It reasons that because Congress limited judicial review only of what were in effect final administrative decisions, it must not have intended to preclude separate challenges to procedures used by the agency before it issued any final decision. But the type of judicial review of agency action which the Court finds that Congress failed to preclude is a type not generally available even without preclusion. In the light of this settled rule, the natural reading of “determination respecting an application” in § 1160(e) encompasses both final decisions and procedures used to reach those decisions. Each of respondents’ claims attacks the process used by Immigration and Naturalization Service (INS) to make a determination respecting an application.
We have on several occasions rejected the argument advanced by respondents that individual plaintiffs can bypass restrictions on judicial review by purporting to attack general policies rather than individual results. For instance, in United States v. Erika, Inc., 456 U. S. 201 (1982), we found that in the context of the “precisely drawn provisions” of the Medicare statute, the provision of judicial review for awards made under Part A of the statute, coupled with the omission of judicial review for awards under Part B, “provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims.” Id., at 208 (citations omitted). Similarly, in Heckler v. Ringer, 466 U. S. 602 (1984), we addressed a challenge to a ruling issued by the Secretary of Health and Human Services that precluded payment under Medicare for a particular medical procedure. The Medicare Act permits judicial review of “any claim arising under” the Act, 42 U. S. C. §§405(g), (h), only after a claimant seeks payment and exhausts administrative remedies. The plaintiffs contended that their lawsuits challenging the Secretary’s refusal to reimburse the procedure at issue were permissible without exhausting administrative remedies because they challenged only the Secretary’s “ ‘procedure’ for reaching her decision,” not the underlying decision on their particular claims. 466 U. S., at 614. We rejected this distinction, finding that “it makes no sense to construe the claims... as anything more than, at bottom, a claim that they should be paid for their... surgery.” Ibid. This holding was based on the recognition that a contrary result would allow claimants “to bypass the exhaustion requirements of the Medicare Act by simply bringing declaratory judgment actions in federal court before they undergo the medical procedure in question.” Id., at 621. We expressly rejected the contention — also urged by the respondents here — that “simply because a claim somehow can be construed as ‘procedural,’ it is cognizable in federal district court by way
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:
|
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.
No. 55.
Indiana Department of State Revenue, Gross Income Tax Division, v. Nebeker.
Argued February 1, 1955.
Decided February 7, 1955.
Lloyd C. Hutchinson, Deputy Attorney General of Indiana, argued the cause for petitioner.
With him on the brief were Edwin K. Steers, Attorney General, and Carl M. Franceschini, Deputy Attorney General.
Raymond O. Evans argued the cause and filed a brief for respondent.
Certiorari, 348 U. S. 808, to the Supreme Court of Indiana.
Per Curiam:
Affirmed on the authority of Freeman v. Hewit, 329 U. S. 249.
Mr. Justice Black and Mr. Justice Douglas dissent.
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_source
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
UNITED STATES of America v. Nelson G. GROSS, Appellant.
No. 79-2010.
United States Court of Appeals, Third Circuit.
Argued Jan. 8, 1980.
Decided Feb. 7, 1980.
F. Lee Bailey (argued), Kenneth J. Fish-man, Boston, Mass., for appellant.
Robert J. Del Tufo, U. S. Atty., Newark, N. J., for appellee; Maryanne T. Desmond (argued), Chief, Appeals Division, Asst. U. S. Atty., Newark, N. J., on brief.
, Before SEITZ, Chief Judge, ADAMS and WEIS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Nelson Gross appeals for the second time the district court’s denial of a writ of coram nobis. In the first appeal, we vacated the order of the trial court and remanded for a full evidentiary hearing on Gross’s allegations of misconduct on the part of government marshals in their dealings with a sequestered jury. After an extensive hearing the district judge found that a deputy marshal had acted improperly, but that his behavior was neither of such character nor of such magnitude as to justify issuance of the writ. We now affirm.
The purported evidence of improprieties was discovered more than two years after the affirmance of Gross’s conviction and after his sentence had been served and his parole supervision terminated. Consequently, relief under Fed.R.Crim.P. 33 or under habeas corpus, 28 U.S.C. § 2255, was not available.
The bases for the petition for writ of coram nobis were statements in an affidavit of Leon Stacey, a former Deputy United States Marshal. Stacey alleged that, while assigned to guard the sequestered jurors, he developed during the first week of the trial a romantic involvement with one of the female jurors which continued until shortly after the trial ended. He further alleged that in the course of his “romancing” he sought to influence her verdict by telling her that the defendant would, if convicted, receive no more than a fine. Two other marshals were claimed to have competed for the affections of another juror and to have attempted similar influence.
At the first hearing on the petition, the district court heard testimony in camera from Stacey, from the current marshal, and from the stenographer employed in preparing the affidavit. The court determined that the manner in which the affidavit was prepared raised doubts as to its credibility, that Stacey’s motives were suspect, and “that all allegations of misconduct during the pendency of the trial [were] false.”
On the first appeal we concluded that a more extensive hearing was necessary because the district court should not have assumed that once it had “discredited] Stacey’s allegations regarding frequent instances of prolonged romantic encounters between himself and a female juror, similar ‘trysts’ between Marshal Service officers and another female juror, and instances in which he attempted to influence directly the juror’s deliberations on Gross’s guilt or innocence, there was no necessity for further judicial inquiry into this case.” We held that “inasmuch as there was other evidence offered here suggesting romantic involvement between sequestered jurors and the officers of the court assigned to supervise their sequestration, a full evidentiary hearing on the issue of juror prejudice was in order.” United States v. Gross, No. 78-1360, slip op. at 5 (3d Cir. Nov. 6, 1978), order reported at 558 F.2d 824.
At the hearing held pursuant to our remand, testimony was adduced from sixteen witnesses, including five jurors, two deputy marshals, the chief deputy marshal, the former marshal, a deputy clerk who had been a matron assigned to the jury, two FBI agents who had participated in an investigation of the Marshal’s office, and four other witnesses. Each relevant witness denied that he or she had heard or observed any discussions relating to the Gross trial between any deputy marshal and any juror.
After hearing much contradictory testimony the trial judge concluded that Stacey’s story was substantiálly fabricated, although there was at least this kernel of truth:
The forelady of the Gross jury testified that Stacey had annoyed certain female members of the jury. A matron assigned to the jury testified that Stacey mentioned his romantic interest in a certain juror.
The forelady believed the matter had been reported to the Trial Judge and that Stacey had been removed on account of his behavior. The matron testified that she reported Stacey to the United States Marshal. In fact nothing was reported to the Trial Judge, however, several witnesses confirmed that Stacey had been reported to the Marshal. The Marshal denied knowing about it, while several Deputy Marshals testified that they heard him verbally order Stacey off the Gross jury.
Because the trial judge is completely competent to sift through testimony and make credibility determinations, and because his findings are not clearly erroneous, we decline the petitioner’s invitation to make our own findings of fact. The legal question we must therefore decide is whether the behavior found to have occurred requires the conclusion that Gross should have been granted the writ of coram nobis. To focus this legal issue more clearly, it is whether the annoyance of some jurors by a deputy marshal and his expression of romantic interest in a specific juror is a sufficient taint on the proceedings to require coram nobis relief.
The interest in finality of judgments dictates that the standard for a successful collateral attack on a conviction be more stringent than the standard applicable on a direct appeal. Behavior that might clearly require a mistrial if brought to the district court’s attention at trial, or a retrial if on direct appeal, might not be sufficient to require coram nobis relief.
Coram nobis is a remedy infrequently used, and the case law on it is accordingly sparse. The Supreme Court has held that, as an extraordinary remedy, coram nobis should be considered only in circumstances “compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954). Issuance of the writ has been said to be limited to “those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914) (dictum). Moreover, “[a]ny proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise.” United States v. Cariola, 323 F.2d 180, 184 (3d Cir. 1963).
Quoting from an opinion dealing with a direct appeal of a conviction, Gross argues that he has met his burden of demonstrating irregularity during the course of the trial, so that the burden shifted to the government to prove that the irregularity was harmless:
In a criminal case any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). Assuming that the Remmer shift in presumptions applies to these proceedings, we hold that the district court correctly emphasized that the presumption shifts only if the improper contact between the deputy marshal and a juror involved “the matter pending before the jury. ” That matter, we held in United States v. Boscia, 573 F.2d 827, 831 (3d Cir.), (interpreting Remmer), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978), “is the guilt or innocence of the defendant[].”
The trial judge specifically disbelieved the testimony that Stacey had communicated with a juror regarding the substance of the trial itself. The conduct found to have occurred — however improper and reprehensible — was simply “annoyance” of some female jurors and the expression of a romantic interest in one. Because this finding is not clearly erroneous, we affirm the district court’s conclusion that Gross did not carry his burden of proving that he was unjustly convicted in an “irregular and invalid” proceeding. The judgment of the district court will accordingly be affirmed.
. United States v. Gross, No. 78-1360 (3d Cir. Nov. 6, 1978) (unpublished per curiam), order reported at 588 F.2d 824.
. See United States v. Gross, 375 F.Supp. 971 (D.N.J.1974), aff’d, 511 F.2d 910 (3d Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). In the previous appeal this court affirmed the district court’s holding that it did not have jurisdiction over Gross’s Rule 33 motion based on newly discovered evidence, because it was not made within two years of the date of final judgment. See United States v. Gross, 446 F.Supp. 948, 952-53 (D.N.J.1978), aff’d on this issue, No. 78-1360 (3d Cir. Nov. 6, 1978). Final judgment has been defined as the date when the appellate court issues its mandate affirming the conviction. United States v. White, 557 F.2d 1249, 1250-51 (8th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977); United States v. Granza, 427 F.2d 184, 185 n. 3 (5th Cir. 1970); Casias v. United States, 337 F.2d 354, 356 (10th Cir. 1964); Smith v. United States, 109 U.S.App.D.C. 28, 31, 283 F.2d 607, 610 (D.C. Cir. 1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961).
. Gross was convicted of conspiracy to defraud the United States, aiding and assisting the filing of a false tax return, obstruction of justice, and subordination of perjury. See id. His sentence, as later reduced, was to imprisonment for a year and a day. After serving five months of the sentence, he was released on parole, supervision of which ended June 1, 1977. Because he was no longer “in custody” when the present motion was filed, no jurisdiction for habeas corpus existed.
. The judge ascertained that Gross had paid all expenses of Stacey’s trip from California to New Jersey to prepare the affidavit during the course of a two-day meeting. Stacey had admitted that the wording of the affidavit “was primarily the creation of [Gross],” and that several key statements as well as the name of the juror with whom Stacey allegedly became friendly were supplied by Gross. United States v. Gross, 446 F.Supp. 948, 954 (D.N.J.), vacated and remanded, 588 F.2d 824 (3d Cir. 1978).
. Stacey had been the subject of a magazine story and was to be the protagonist of a book. The alleged improprieties were said to be disclosed at the urging of the author and for the purpose of gaining financial benefit from public attention. Furthermore, there were suggestions of personal animosity between Stacey and other members of the Marshal’s service. Id. at 954-55.
. Id. at 958.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
LIGHTER FOUNDATION, Inc., Appellant, v. Russell A. WELCH, Appellee. SOUTHERN FIREPROOFING COMPANY, Inc., Appellant, v. UNITED STATES of America, Appellee. Jacob LICHTER and Jennie L. Lichter, Appellants, v. UNITED STATES of America, Appellee.
Nos. 13000-13002.
United States Court of Appeals Sixth Circuit.
Aug. 30, 1957.
Paul W. Steer, Cincinnati, Ohio, Charles H. Tobias, Jr. and Steer, Strauss & Adair, Cincinnati, Ohio, on brief, for appellants.
Marvin W. Weinstein, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and I. Henry Kutz, Attorneys, Washington, D. C., Hugh K. Martin, U. S. Atty., Cincinnati, Ohio, on brief, for appellees.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
MILLER, Circuit Judge.
The appellants, Liehter Foundation, Inc., Southern Fireproofing Company, Inc., and Jacob Liehter and Jennie L. Liehter, his wife, filed separate actions in the District Court to recover federal income taxes and interest claimed by them to have been overpaid for the fiscal years ending August 31, 1949, 1950 and 1951. The main question involved is whether Lichter Foundation, Inc., is exempt from taxation under Section 101(6) Internal Revenue Code 1939, 26 U.S.C.A. § 101(6).
The District Judge, in dismissing the actions filed detailed Findings of Fact, of which the following are sufficient to present the issue.
Jacob Lichter, age 58, had been in the masonry contracting business since 1923, operating through a partnership known as Southern Fireproofing Company and through a corporation known as Southern Fireproofing Company, Inc., of which he was president. He engaged in several civic activities and, because of his own experience in earning his way through school, early developed an interest in aiding needy students. In 1945 he and his wife provided by their wills two trusts to aid needy students. However, from 1945 to 1947 Lichter was more successful in business than he expected to be and he felt that it would be a good thing if he saw an opportunity to do so, to effectuate the purpose of these trusts during his lifetime rather than after his death. He consulted his attorney for advice on the possibility of establishing a foundation to aid needy students. After discussing the matter with his attorney, he developed the idea that the first job that came along that was of a sizeable nature and looked as though he might make a reasonable profit off of it would be used for a foundation, which he would incorporate at that time.
About February, 1948, the Ring Construction Corporation of Minneapolis, Minnesota, general contractors, submitted a bid for the construction of a Veterans’ Hospital at Albany, New York, and was awarded the contract in the latter part of March, 1948. Lichter, opperating through his partnership or corporation, had done masonry subcontracting work for Ring Construction Corporation off and on since 1934. He communicated with Morris J. Ring, president of the construction corporation, about performing the masonry work in the construction of the Veterans’ Hospital. Lichter had an efficient organization which could accomplish the job and Ring felt that Lichter could do the job better than anyone else he knew. He wanted the services of both Lichter and his Southern Fireproofing Company staff.
Following negotiations, which included discussion of a union rule which prohibited the sub-contracting of masonry work in the usual manner, they decided to use what was known as a “management contract,” rather than a sub-contract. As a practical matter, there was no substantial difference between the management contract and the ordinary sub-contract. It required Lichter to furnish all necessary engineering services, to purchase all necessary materials, and to employ and supervise all necessary labor for the construction of all masonry work on the hospital. Although the Southern Fireproofing Company could have taken the management contract, Lichter proposed that it be taken in the name of the Lichter Foundation, Inc., which fitted in with his idea of starting during his lifetime a foundation to help needy students. He thought that the Veterans’ Hospital contract was the proper one with which to start the foundation because he estimated that he would make a substantial amount of money if he were successful on the job, which would be enough to justify establishing a foundation. Ring knew nothing about Lichter Foundation, Inc., which had not been incorporated, or its ability to perform the job, but it made no difference to him who actually took the contract as long as he was sure that Lichter and his staff would perform the work. The contract contained the personal guaranty of Jacob and Jennie Lichter, individually, and as partners in the Southern Fireproofing Company, that the contract would be performed, which guaranty was secured by the deposit in escrow with a bank of $100,000 in securities. On August 27, 1948, Ring Construction Corporation as “contractor” and Lichter Foundation, Inc., a corporation to be formed under the laws of the state of Ohio, as “manager,” entered into the management contract.
On September 7,1948, Lichter Foundation, Inc., was organized as a corporation, not for profit, under the laws of the state of Ohio. The Articles of Incorporation stated that the purpose for which the corporation was formed was to handle, invest and administer “funds coming into its hands to aid needy students, and to pay such funds for the purpose of rendering aid to such students who desire to pursue courses of study leading to a degree from the Massachusetts Institute of Technology, or from a college, university or other recognized institution of higher education, said aid to be rendered to such students as designated hereinafter, and said aid to be in such amounts and to be rendered under such terms and conditions as may be determined by the Board of Trustees from time to time, * * *. The purpose of said corporation shall also be to render aid and assistance for other educational, scientific or charitable purposes, and to pay funds therefor as in the opinion of the Board of Trustees may be advisable from time to time.”
Lichter Foundation, Inc., under the personal supervision of Lichter, performed the management contract using the staff which normally worked for Southern Fireproofing Company. The Foundation advanced the money necessary to meet payrolls and purchase materials, and was periodically reimbursed by Ring. Performance of the contract was completed on January 4, 1951. The Foundation made a net profit on the contract for the fiscal years ending August 31, 1949, 1950 and 1951 of $200,501.05, $140,418.73 and $182,689.47, respectively, for a total of $523,609.25. From the time of its organization through August 31, 1951, the Foundation’s only other income consisted of contributions, interest and dividends totaling $83,323.91. During the same period, the Foundation’s only expenditures, other than those directly or indirectly related to performance of the contract, including insurance, office supplies, contributions and student loans, totaled $17,552.11.
The three Lichter organizations (Southern Fireproofing Company, Southern Fireproofing Company, Inc., and Lichter Foundation, Inc.) shared the same offices. So far as the accounting was concerned, all of the employees were employees of the Southern Fireproofing Company, Inc. At the end of each year, office overhead was allocated among the organizations in proportion to the amount of business done by each entity during the year. The Foundation’s pro rata share of overhead expenses for the three years in question was $16,330.87, $26,454.02 and $3,857.07, respectively. Lichter drew an annual salary of $20,000, included in the total overhead, a pro rata share of which was paid by the Foundation as set out above.
The Foundation applied for, but was denied, tax-exempt status for its income for years prior to the fiscal year ending August 31, 1951, but has been granted tax-exempt status for subsequent fiscal years. As a result of the denial of a tax-exempt status, it paid federal income taxes and interest in the amounts of $91,081.60, $61,796.36 and $88,355.22 for the respective years involved.
Jacob and Jennie Lichter contributed to the Foundation $19,500 in 1948 and $23,250 in 1950. Southern Fireproofing Company, Inc., contributed to the Foundation $350 in 1949. These parties paid federal income tax and interest deficiencies as a result of the disallowance of the amounts contributed by them to the Foundation, as deductions for the years in which they were paid.
The three taxpayers filed timely claims for refund for the taxes and interest paid. They contended that Lichter Foundation, Inc., was organized and operated exclusively for charitable or educational purposes, within the meaning of Section 101(6) of the Internal Revenue Code of 1939 during the fiscal years ending August 31, 1949, 1950 and 1951. Jacob and Jennie Lichter and Southern Fireproofing Company, Inc., claimed that their contributions to the Foundation were proper deductions under Section 23 (0) and (q) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 23 (0, q), in that they were made to and for the use of a foundation organized and operated exclusively for charitable purposes. Failing to obtain refunds, the present actions were filed by them. They were consolidated for trial in the District Court, and following the trial were dismissed by the District Judge. These consolidated appeals followed.
Section 101(6) exempts from income taxation corporations and any- “foundation, organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation.” The ultimate issue presented in these cases is whether the Lichter Foundation, whose income under its charter provisions was to be used for charitable purposes, was exempt from income taxation for the taxable years in question despite the fact that its income was derived chiefly from profits from business operations.
The appellees contend that the Foundation was not entitled to the tax-exempt status because one of the purposes for which it was organized and operated was to engage in competitive business operations, which necessarily meant that it was not organized and operated “exclusively” for charitable or educational purposes, as required by the statute. Better Business Bureau of Washington, D. C. v. United States, 326 U.S. 279, 283, 66 S.Ct. 112, 90 L.Ed. 67.
The appellants argue that such a contention fails to distinguish between the activities of the corporation and the purposes of the corporation, that the wording of the statute itself makes a distinction between the charitable or education- ' al “purposes” of the organization and its “activities,” and that since the purposes of the corporation are exclusively charitable or educational the requirements of the statute are complied with. They point out that charitable and educational 'organizations can not carry out their charitable and educational purposes without money and that making their properties productive to the end that the income may be thus used does not alter or enlarge the purposes for which the organization was created and conducted. Trinidad v. Sagrada Orden, 263 U.S. 578, 581, 44 S.Ct. 204, 205, 68 L.Ed. 458. They contend that it is immaterial whether the properties are made productive by being invested in land or securities or by being used in some other income returning operation so long as the income derived therefrom is used exclusively for the charitable or educational purposes of the organization.
Our construction of the statute starts with the Trinidad case, supra, decided in 1924. In that case, the Supreme Court held that a corporation sole, organized and operated in the Philippine Islands for religious, benevolent, scientific and educational purposes, was not taxable on income used exclusively for those purposes. The corporation’s income was derived mainly from rents, dividends and interest. A relatively small part of its income came from profits from occasional sales of wine, chocolate and other articles purchased and supplied for use in its churches, schools and other agencies. In holding the corporation exempt, the Supreme' Court said the following about the statute, “First, it recognizes that a corporation may be organized and operated exclusively for religious, charitable, scientific or educational purposes, and yet have a net income. Next, it says nothing about the source of the income, but makes the destination the ultimate test of exemption.” It pointed out that making property owned by the corporation productive to the end that the income may be used for its charitable purposes did not alter or enlarge the purposes for which the corporation was created and conducted. It also referred to the fact .that the transactions in wine, chocolate and other articles did not amount to engaging in trade in any proper sense of the term, in that there was no selling to the public or in competition with others. It said, “That the transactions yield some profit is in the circumstances a negligible factor. Financial gain is not the end to which they are directed.”
Irrespective of the exact factual situation in the Trinidad case, the Court’s statement that the statute says nothing about the source of the income but makes the destination the ultimate test of exemption, has furnished the basis for what is known as the Destination Test, thereafter adopted by the Court of Appeals for the Second Circuit in 1938 in Roche’s Beach, Inc., v. Commissioner, 96 F.2d 776, 778, and other cases hereinafter referred to. In the Roche’s Beach case, the corporation operated a bathing beach business from which it obtained substantial income which was used for charitable purposes. In holding the corporation exempt from taxation, the Court said that the statute did not mean “that to come within the exemption a corporation may not conduct business activities for profit. The destination of the income is more significant than its source,” citing Trinidad v. Sagrada Orden, supra. Certiorari was not applied for and this ruling was accepted and followed by the Commissioner for several years. The ruling was subsequently approved by the same court in Bohemian Gymnastic Ass’n Sokol of City of New York v. Higgins, 2 Cir., 147 F.2d 774, 776; Debs Memorial Radio Fund, Inc., v. Commissioner, 2 Cir., 148 F.2d 948, 951-952.
The ruling was followed and approved by this Court in Commissioner of Internal Revenue v. Orton, 6 Cir., 173 F.2d 483, 486. It has also been approved in the following cases: Willingham v. Home Oil Mill, 5 Cir., 181 F.2d 9, 10; Scofield v. Rio Farms, Inc., 5 Cir., 205 F.2d 68, 72; C. F. Mueller Co. v. Commissioner, 3 Cir., 190 F.2d 120, 121; Boman v. Commissioner, 8 Cir., 240 F.2d 767, 770-771. See also: Squire v. Students Book Corp., 9 Cir., 191 F.2d 1018, 1020; Koon Kreek Klub v. Thomas, 5 Cir., 108 F.2d 616; United States v. Proprietors of Social Law Library, 1 Cir., 102 F.2d 481, 484; Estate of Simpson v. Commissioner, 2 T.C. 963, 966.
After recognizing and following the ruling in Roche’s Beach case for several years, the Commissioner in 1942 announced that he did not intend to continue to follow it. Thereafter, the problem of organizations operating commercial businesses in competition with others and claiming exemption solely because their profits were to be devoted to charity was presented to Congress. The Ways and Means Committee of the House spoke as follows in making its report, “These organizations were originally given this tax exemption on the theory that they were not operated for profit, and that none of their proceeds inured to the benefit of shareholders. However, many of these organizations are now engaged in operation of apartment houses, office buildings, and other businesses which directly compete with individuals and corporations required to pay taxes on income derived from like operations. Your committee was without sufficient data to act intelligently, since many of these corporations and organizations are not now required to file reports, and in the absence of such information it was felt best to continue the present tax exemption, but to require them to file reports stating specifically the items of gross income, receipts, and disbursements and such other information, and keep such records, as the Commissioner of Internal Revenue may prescribe.
“These returns, under the bill, are required to be made for the taxable years beginning after December 31, 1942, and all subsequent years, and it is the intent of your committee to make a thorough study of the information contained in such returns with the view to closing this existing loophole and requiring the payment of tax, and the protection of legitimate companies against this unfair competitive situation.” H. Rep. No. 871, 78th Cong.; 1st Sess., pp. 24-25. It will be noticed that the report specifically stated that it was considered best “to continue the present tax exemption” and later, after a thorough study of the problem it was its intent to close “this existing loophole” and require payment of tax. This appears to be a recognition by the Committee that under the statute as it then existed such a corporation was tax exempt. It was not until the Revenue Act of 1950 that Congress made a change which expressly imposed a tax on what it called the “[u]nrelated business net income” of organizations exempt from tax under Section 101. Section 301 of the Revenue Act of 1950; Sections 421, 422, Internal Revenue Code, 1939, 26 U.S.C.A. §§ 421, 422. In the meantime, this Court on March 28, 1949, ruled in favor of tax exemption in Commissioner of Internal Revenue v. Orton, supra, 6 Cir., 173 F.2d 483, 486, quoting that portion of the opinion of the Supreme Court which said that the statute “says nothing about the source of the income, but makes the destination the ultimate test of exemption” and also the statement in the opinion in the Roche’s Beach case, “This does not mean that to come within the exemption a corporation may not conduct business activities for profit. The destination of the income is more significant than its source.” Certiorari was not applied for in the case. We have recently cited the case with approval of its holding that Section 101(6) Internal Revenue Code 1939, “being remedial must be liberally construed.” Seasongood v. Commissioner, 6 Cir., 227 F.2d 907, 910. The District Judge in making his ruling in the present case did not refer to either the Orton case or the Roche’s Beach case which it followed.
Other courts, under varying factual situations, have heeded the Commissioner’s contentions and held such organizations taxable. Universal Oil Products Co. v. Campbell, 7 Cir., 181 F.2d 451, certiorari denied, 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623; United States v. Community Services, 4 Cir., 189 F.2d 421, certiorari denied, 342 U.S. 932, 72 S.Ct. 375, 96 L.Ed. 694; Ralph H. Eaton Foundation v. Commissioner, 9 Cir., 219 F.2d 527; John Danz Charitable Trust v. Commissioner, 9 Cir., 231 F.2d 673, certiorari denied, 352 U.S. 828, 77 S.Ct. 43, 1 L.Ed.2d 50; Riker v. Commissioner, 9 Cir., 244 F.2d 220. However, it is to be noted that the earliest of these cases was decided in 1950, subsequent to the organization of the Lichter Foundation and its execution of the masonry contract in 1948, at which time the rule of the Roche’s Beach case was the judicially approved rule. The ruling in the Universal Oil Products Co. case seems to be based largely upon the court’s finding (181 F.2d at pages 464-465) that “the scientific or educational purpose of plaintiff’s operation instead of being exclusive was only incidental to the primary purpose of research, development and securing patents in the petroleum field for the benefit of the petroleum industry and particularly for the major oil companies, in order to improve their business, increase their sales and thereby secure to them greater profits. Resulting benefits to the public were only incidental,” citing Better Business Bureau of Washington, D. C. v. United States, supra, 326 U.S. 279, 283, 66 S.Ct. 112, 90 L.Ed. 67. A similar view was expressed by the same court in its earlier case of Underwriters’ Laboratories v. Commissioner, 7 Cir., 135 F.2d 371, 373, certiorari denied, 320 U.S. 756, 64 S.Ct. 63, 88 L.Ed. 450. And in the Ralph H. Eaton Foundation case, the Court was faced with the necessity of differing with its ruling of a few years previous in Squire v. Students Book Corporation, supra, 9 Cir., 191 F.2d 1018, justifying the difference on the basis of the different factual situations involved. It shortly thereafter followed this later ruling in the John Danz Charitable Trust Co. case and the Riker case, cited above. The numerous cases involving the issue, with their conflicting rulings, are referred to and discussed in the opinions in the Universal Oil Products Co. case and the Community Services case, making it unnecessary to repeat the discussion here.
In view of the foregoing judicial, administrative and legislative construction of Section 101(6), we do not think that for the purposes of this case we should apply a different rule from that stated in the Roche’s Beach case, which was the judicially approved rule when the Lichter Foundation was organized, and which was subsequently approved by this Court in Commissioner of Internal Revenue v. Orton, supra, 173 F.2d 483. While recognizing the merit of the Commissioner’s argument in support of the new rule, which has received some judicial approval, particularly in the Fourth and Ninth Circuits, it appears that the rule in the Roche’s Beach case still has the judicial approval of the Second, Third, Fifth, Sixth and Eighth Circuits with respect to taxable years prior to January 1, 1951. Any change in the rule in this Circuit should be by statute rather than by judicial decision. New York Life Ins. Co. v. Ross, 6 Cir., 30 F.2d 80, 83, certiorari denied, 279 U.S. 852, 49 S.Ct. 348, 73 L.Ed. 995; Rd-Dr. Corporation v. Smith, 5 Cir., 183 F.2d 562, 565, certiorari denied, 340 U.S. 853, 71 S.Ct. 80, 95 L.Ed. 625. That change has now been made, but applicable by the terms of the statute only to taxable years beginning after December 31, 1950. It does not apply to the present litigation. In our opinion, the Lichter Foundation was exempt from income taxation under Section 101(6), Internal Revenue Code 1939, for the years in question. Jacob and Jennie L. Lichter and the Southern Fireproofing Company, Inc. are entitled to income tax deductions for the contributions made by them to the Foundation, under the provisions of Section 23(o) and (q) of the Code.
The judgments are reversed and the cases remanded to the District Court for further proceedings consistent with the views expressed herein.
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:
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sc_respondent
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
HUNTER v. TENNESSEE
No. 5085.
Decided June 28, 1971
Together with No. 5098, Harris v. Tennessee; No. 5101, Houston et al. v. Tennessee, and No. 5103, Hunter et al. v. Tennessee, also on petition for writ of certiorari to the same court.
Per Curiam.
The motions for. leave to proceed in forma ■pauperis and the petitions for writs of certiorari are granted.
After a joint trial in the state courts of Tennessee, petitioners were convicted of rape and sentenced to death. While their appeals were pending in the Tennessee Supreme Court, this Court 'announced its decision in Witherspoon v. Illinois, 391 U. S. 510 (1968)! Petitioners sought to supplement their bills of exceptions to raise issues' under that decision, but they were precluded from doing so by the provisions of former Tennessee Code Annotated § 27-111 (1955), which as it then stood prohibited the filing of bills of exceptions more than 90 days after judgment. The .Tennessee Supreme Court therefore affirmed petitioners’ convictions and sentences without considering the possible effect of Witherspoon. 222 Tenn. 672, 440 S. W. 2d 1 (1969). While the petitions for certiorari were pending in this Court, the Tennessee Legislature amended § 27-111 to authorize the state appellate courts to order the filing of. bills of exceptions in criminal cases at ány time, for good cause shown. Tenn. Code Ann. § 27-111 (Supp. 1970). With matters in this posture, we believe that sound judicial administration requires us to vacate the judgments below and remand the cases to the Tennessee Supreme Court so as to afford petitioners an opportunity to apply to that court under the new Tennessee statute for leave to supplement .their bills of exceptions. In so doing we, of course, intimate no view on the merits of petitioners’ contentions or as to the applicability of the new Tennessee statute to these cases.
It is so ordered.
Mr. Justice Black dissents.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES v. BRAZDA.
No. 14030.
United States Court of Appeals, Eighth Circuit.
Jan. 11, 1950.
John E. Deming, Assistant United States Attorney, Omaha, Neb. (Joseph T. Vdtava, United States Attorney, Omaha, Neb., was with him on the brief), for appellant.
Emmet L. Murphy, Omaha, Neb. (Neil H. Mapes and Forrest A. Johnson, Fremont, Neb., were with him on the brief), for appellee.
Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The question for decision is whether in the Distrct of Nebraska grand jurors may be selected in accordance with § 1865 (a) of Title 28 U.S.C.A., the new Judicial Code which became effective September 1, 1948,. or must still be drawn as provided in § 11 of the Act of February 27, 1907, c. 2073, 34 Stat. 999.
The pertinent portion of § 1865(a) of Title 28 U.S.C.A., reads as follows:
“Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service.”
The portion of § 11 of the Act of February 27, 1907, with which we are concerned, reads:
“ * * * The grand jury sitting in the-Omaha division shall take cognizance and have jurisdiction of all crimes and offenses committed in the territory comprising the Omaha division, the Norfolk division,, the Grand Island division, the North Platte division, and the Chadron division, and. :such grand jurors shall be drawn from the territory comprising said divisions. The grand jury sitting in the Lincoln division shall take, cognizance and have jurisdiction ■of all crimes and offenses committed in the territory comprising the Lincoln division, the Hastings division, and the McCook division, and such grand jurors shall be drawn from the territory comprising said divisions. * * * ”
On March 24, 1949, the appellee was indicted by a grand jury sitting at Omaha, in the Omaha Division of the District of Nebraska. The grand jury was drawn for the District pursuant to an order of the District Court filed on December 17, 1948, and im-panelled and sworn on January 4, 1949. On March 8, 1949, the grand jurors were recalled by the court for further service, and they reconvened in Omaha on March 21, 1949. They had not been drawn as provided by § 11 of the Act of February 27, 1907, but were selected from the entire District -of Nebraska.
The appellee moved to dismiss the indictment upon the ground that the grand jury was improperly constituted, and that therefore the court was without jurisdiction and the indictment void. The court, in the belief that § 11 of the Act of February 27, 1907, had not been repealed or superseded and was still in effect, and that the jurors had been unlawfully selected, dismissed the indictment.
The Government has appealed from the order of dismissal, and insists that the grand jury was lawfully constituted and that the indictment is valid.
The Government argues, in substance, that § 11 of the Act of February 27, 1907, was repealed by the Judicial Code which became effective January 1, 1912, Act of March 3, 1911, c. 231, 36 Stat. 1087-1169; that § 277 of the Judicial Code of 1912 differs in no substantial respect from § 1865 (a) of the present Judicial Code, 28 U.S.C. A. § 1865(a), and authorized the drawing of jurors from such parts of a district “as the court shall direct”; that § 297 of the Judicial Code of 1912, 36 Stat. 1169, provided for the repeal of “Acts and parts of Acts, in so far as they are embraced within and superseded by this Act”; that in the case of United States v. Orshek, 8 Cir., 164 F.2d 741, this Court ruled that the venue provisions of the Act of February 27, 1907, were superseded by the venue sections of the Judicial Code of 1912 and were repealed by them; that in the case of Biggerstaff v. United States, 8 Cir., 260 F. 926, which dealt with an indictment returned in the District of Nebraska, this court said, 260 F. on page 927: “It was proper to draw the grand jurors from the district' at large”, inferentially indicating that it was § 277 of the Judicial Code of 1912, and not § 11 of the Act of February 27, 1907, which was controlling; that the Supreme Court in Salinger v. Loisel, 265 U.S. 224, 235-236, 44 S.Ct. 519, 68 L.Ed. 989, ruled that special statutes applicable to particular districts, indicating the division in which criminal proceedings should be had, were superseded by the general provisions of § 53 of the Judicial Code of 1912; that legislative history relative to the adoption of that Code shows that § 277 thereof was intended to supersede such special legislation as § 11 of the Act of February 27, 1907, and that § 11 is inconsistent with Rule 6(a) of the Rules Of Criminal Procedure for the United States District Courts, 18 U.S.C.A., which provides:
“(a) Summoning Grand Juries. The court shall order one or more grand juries to be summoned at such times as the public interest requires. The grand jury shall consist of not less than 16 nor more than 23 members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement.”
The appellee contends that § 11 of the Act of February 27, 1907, has never been repealed, either expressly or by implication, and remains in full force and effect; that it is not inconsistent with any rule of Federal Criminal Procedure; and that the general provisions of the Judicial Code of 1912 and of the present Judicial Code may not be construed as repealing or superseding § 11 of the Act of February 27, 1907. The appellee invokes the familiar rule that when there are two conflicting statutes upon the same subject, one general and the other special, the special statute governs, without regard to priority of enactment. See United States v. Hess, 8 Cir., 71 F.2d 78, 79 and cases cited; Rodgers v. United States, 185 U.S. 83, 22 S.Ct. 582, 46 L.Ed. 816; Iriarte v. United States, 1 Cir., 157 F.2d 105, 108, 167 A.L.R. 494. The appellee points out that by § 29 of the original Judicial Act of Congress of September 24, 1789, c. 20, 1 Stat. 73, 88, it was provided that “ *' * * jurors * * * shall be returned * * * from such parts of the district from time to time as the court shall direct, so as shall be most favorable to an impartial trial and so as not to incur an unnecessary expense, or unduly to burthen the citizens of any part of the district with such services”; and that the general rule for the drawing of grand and petit jurors is the same today as it has been from the beginning.
In interpreting statutes, the function of the courts is to construe the language so as to give effect to the intent of Congress. United States v. American Trucking Associations, Inc., 310 U.S. 534, 542-544, 60 S.Ct. 1059, 84 L.Ed. 1345. While there is force in the appellee] s argument, the rule upon which it is based is not absolute, but, like rules of statutory construction, is an aid at arriving at probable legislative intent. There is also a rule to the effect that where two acts cover an entire subject, and the later act was clearly intended to supersede and take the place of the earlier act, the earlier act is repealed. Chase v. United States, 8 Cir., 261 F. 833, 837, affirmed 256 U.S. 1, 41 S.Ct. 417, 65 L.Ed. 801. See, also, United States v. Tynen, 11 Wall. 88, 92, 20 L.Ed. 153; King v. Cornell, 106 U.S. 395, 396, 1 S.Ct. 312, 27 L.Ed. 60; Red Rock v. Henry, 106 U.S. 596, 601-602, 1 S.Ct. 434, 27 L.Ed. 251; Murphy v. Utter, 186 U.S. 95, 105, 22 S.Ct. 776, 46 L.Ed. 1070; The Paquete Habana, 175 U.S. 677, 685, 20 S.Ct. 290, 44 L.Ed. 320; Posadas v. National City Bank, 296 U.S. 497, 503-504, 56 S.Ct. 349, 80 L.Ed. 351. In the case last cited, Mr. Justice Sutherland, speaking for a unanimous court, said, page 503 of 296 U.S., 352 of 56 S.Ct.
“ * * * There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general, thing, the later act is to be construed as a continuation of and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment.” See, also, Bartlett v. United States, 10 Cir., 166 F.2d 920, 926.
It is our conclusion that the rule stated in the second category controls the instant case, and that § 11 of the Act of February 27, 1907, no longer governs the drawing of grand jurors or the jurisdiction of grand juries in the District of Nebraska-. When Congress revised the Judicial Code in 1911, effective January 1, 1912,, and provided in § 297, 36 Stat. 1169, for the repeal of all Acts and parts of Acts in so far as they were embraced in and superseded by. that Code, we think that Congress clearly indicated that special statutes relating to particular districts, the subject matter of which were covered by the Code, were no longer to be effective. That this has been the view of this Court is indicated by its opinion in the Orshek case, 8 Cir., 164 F.2d 741, and in the Biggerstaff case, 8 Cir., 260 F. 926. The opinion of the Supreme Court in Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989, is indicative that it was of the same opinion. The revisers of the Judicial Code, who formulated § 1865(a) of new Title 28 U.S.C.A., unquestionably supposed that that section would authorize every federal district court to designate the parts of its district from which grand jurors were to be drawn. Congress, in enacting that Code in 1948, must, we think, have intended that § 1865(a) should be applicable throughout the country, and that the procedure in every district for the selection of grand jurors should be that specified in the Code. A ruling that, notwithstanding the provisions of § 1865(a) of the Judicial Code of 1948 and of § 277 of the Judicial Code of 1912, the United States District Court for the District of Nebraska is still subject to the limitations prescribed by § 11 of the Act of February 27, 1907, is, to our minds, u'nsound and unrealistic.
We hold that the law governing the selection of grand jurors in the District of Nebraska is § 1865(a) of new Title 28 U.S.C.A., and not § 11 of the Act of February 27, 1907, and that the grand jury which returned the indictment against the appellee was lawfully constituted.
The order appealed from is reversed, with directions to reinstate the indictment.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_respond2_3_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "A" thru "E"". Your task is to determine which specific federal government agency best describes this litigant.
Grace MANCILLA, Appellant, v. UNITED STATES of America et al., Appellees.
No. 21173.
United States Court of Appeals Ninth Circuit.
July 28, 1967.
Rehearing Denied Sept. 21, 1967.
Benjamin F. Marlowe, Oakland, Cal., for appellant.
Cecil F. Poole, U. S. Atty., Jerry K. Cimmet, Asst. U. S. Atty., San Francisco, Cal., Morton Hollander, Florence Wagman Roisman, Jack H. Weiner, Howard J. Kashner, Attys., Dept, of Justice, Washington, D. C., for appellees.
Before CHAMBERS, MERRILL and ELY, Circuit Judges.
ELY, Circuit Judge:
The Civil Service Commission removed appellant from her position as a civilian employee of the Department of the Army. The removal was based on a number of grounds, including “insubordination” and “inefficiency and unsatisfactory performance of * * * duties.”
Following the exhaustion of all administrative remedies, appellant instituted suit in the District Court. Seeking judicial review, she named the United States and the members of the Commission as defendants.
The District Court granted a motion to dismiss the action insofar as it was directed against the United States. This was proper. McEachern v. United States, 321 F.2d 31 (4th Cir. 1963); cf. Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952).
The respondent Commissioners moved for summary judgment, and their motion was granted. The principal contention here is that the procedure leading to appellant’s discharge was so defective as to effect deprivation of essential, fundamental rights.
In a case such as this, the judicial power is limited. The court’s only function, assuming that statutory procedures meet constitutional requirements, is to determine if the administrative body substantially complied with those procedures. Brancadora v. Federal Nat. Mortg. Ass’n, 344 F.2d 933 (9th Cir. 1965); Seebach v. Cullen, 338 F.2d 663 (9th Cir. 1964), cert. denied, 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268 (1965).
The record convinces us, as it did the district judge, that the Commission complied with the procedures under which it was obliged to exercise its power and that, moreover, it fairly safeguarded the rights which appellant enjoyed. It is here charged with having “tricked” appellant into believing that it would arrange for the presence of witnesses whose testimony, she now asserts, would have been favorable to her. The charge is mistaken. Well in advance of the formal hearing eventually scheduled for December 16, 1963, the Commission wrote three letters to appellant’s then attorney. These letters were respectively dated November 6, 1963, November 20, 1963, and December 5, 1963. In the first of these, that of November 6, 1963, appears the following:
“With respect to the second paragraph of your letter of November 5, you are advised that no arrangements have been undertaken with regard to a hearing. The Commission does not have subpoena power, but if a hearing is requested by the appellant, the agency will be invited to participate. However, it will be the responsibility of the parties to the appeal to make arrangements for the appearance of any witnesses whose presence they desire.”
Affirmed.
. See Studemeyer v. Macy, 228 F.Supp. 411 (D.D.C.1964), aff’d. 120 U.S.App. D.C. 259, 345 F.2d 748 (1965), cert. denied, 382 U.S. 834, 86 S.Ct. 78, 15 L.Ed. 2d 77 (1965).
There the district judge wrote:
“The record fails to show that the plaintiff was lulled into a false sense of
security by any government agent. Indeed the opposite is true. Plaintiff was promptly and specifically advised, by the civilian personnel officer of whom the request for their attendance was made, that plaintiff would have to obtain his own witnesses.” 228 F.Supp. at 413.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "A" thru "E"". Which specific federal government agency best describes this litigant?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission (U.S.)
D. Commodity Futures Trading Commission
E. Consumer Products Safety Commission
F. Copyright Royalty Tribunal
G. Drug Enforcement Agency
H. Environmental Protection Agency
I. Equal Employment Opportunity Commission
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.
Ellen D. MITCHELL, Appellant, v. Cynthia D. ENSOR, Appellee. Ellen D. MITCHELL, Appellant, v. Cynthia D. ENSOR et al., Appellees.
Nos. 20916, 20993.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 19, 1968.
Decided Feb. 4, 1969.
Mary M. Burnett, Washington, D. C., for appellant.
William H. Bradford, Washington, D. C., with whom John G. DeGooyer, Washington, D. C., was on the brief, for ap-pellee, Ensor.
Before Wilbur K. Miller, Senior Circuit Judge, and Danaher and Tamm, Circuit Judges.
Circuit Judge Danaher became Senior Circuit Judge on January 23,1969.
TAMM, Circuit Judge.
This case presents for our determination the permissibility and legality of certain awards of compensation to the guardian ad litem, temporary conservator and permanent conservator of the person and estate of the appellant. It arises on appeal from orders of the district court granting compensation to those officers and ratifying the report of the auditor.
The facts of this case are particularly pertinent to its disposition. Appellant, Mrs. Ellen Donoho Mitchell, is a resident of Maryland. On May 7, 1965, she was arrested for disorderly conduct while visiting the District of Columbia and confined at D. C. General Hospital. At the time of her arrest and incarceration she had in her possession certain clothing and personal effects, $90.00 in cash, a savings account passbook indicating a balance of approximately $1,200 with the Maryland National Bank, and a dividend check for $745 payable to her order from Strayer’s Business College, Inc., a Maryland corporation. Approximately one month after her arrest, Mrs. Mitchell was ordered committed to the St. Elizabeths Hospital as being “of unsound mind or * * * mentally incompetent so as to be unable to understand the proceedings against [her] or properly to assist in [her] own defense.” 24 D.C.Code § 301(a) (1967).
In December, 1965, appellee Ensor, as sister of the appellant, petitioned the trial court for the appointment of a temporary and permanent conservator pursuant to 21 D.C.Code § 1501 (1967). The petition alleged, inter alia, that Mrs. Mitchell had, at the time of her commitment to the Hospital, an annual income of $5,000 and that she owned personal property in the amount of $51,945, consisting of the items in her possession at arrest plus one hundred twenty-four and one-half shares of stock in Strayer’s Business College, Inc. (represented by petitioner to be a District of Columbia corporation) valued in excess of $50,000. Appellee Ensor further alleged that the appellant’s property interests needed immediate representation in connection with negotiations for the sale of the corporation. On the basis of this petition, District Judge Hart scheduled a hearing with regard to the appointment of a permanent conservator and appointed John L. Laskey as guardian ad litem of the appellant and appellee, R. K. Kennon Jones, her temporary conservator.
The guardian ad litem reported to the court that the actual value of the appellant’s stock was in the neighborhood of a quarter of a million dollars and that his investigations disclosed the desirability of appointing a permanent conservator. On January 26,1966, the court authorized the guardian to employ, at the expense of the estate, an independent psychiatrist to examine Mrs. Mitchell and to report his findings to the court. The temporary conservator’s sixty-day report, filed February 23, 1966, showed an estate consisting of the property and stock interest already mentioned plus a second dividend check of $1,867 and a second bank account of $80.
The psychiatrist filed a written report and testified at a hearing on March 1, 1966, that Mrs. Mitchell was suffering from “schizophrenic reaction, chronic undifferentiated type” (Tr. Romig, p. 8) and that in his opinion she was unable properly to care for her property. At another hearing on March 4, 1966, Hugh J. McGee, serving as counsel for Mrs. Mitchell, raised some questions going to the court’s jurisdiction. Judge Gasch postponed decision on appointing a permanent conservator and by letter asked the guardian ad litem to report on the jurisdictional questions. The guardian ad litem subsequently reported that, in his opinion, the court did have jurisdiction to appoint a conservator.
On March 17, 1966, Judge Gasch ordered that appellee Ballard be appointed permanent conservator, and, on March 21, the court awarded compensation to the guardian ad litem in the amount of $2,382 ($1,500 of which was ultimately paid) and subsequently to the temporary conservator in the amount of $3,321. On May 2, 1966, the Court of General Sessions dismissed the disorderly conduct charge against Mrs. Mitchell, who then was released from St. Elizabeths and returned to her home in Baltimore.
On Mrs. Mitchell’s motion for summary reversal of the orders appointing temporary and permanent conservators, this court, on June 30, remanded the case to the district court for further consideration in accordance with an accompanying per curiam opinion. This court held (1) that Mrs. Mitchell was not “residing in” the District of Columbia as that term is used in 21 D.C.Code § 1501, and (2) that Strayer’s is a Maryland corporation and that “the stock interest of a Maryland corporation, the certificates of which are not present in the District, is not a sufficient basis upon which the District Court might appoint a conservator.” Consequently, the case was remanded for consideration of whether a conservator should have been appointed on the basis of the remaining property in the District.
After a hearing on remand, Judge Gasch issued a memorandum dated September 1, 1966, in which he summarized the considerations that led to the appointment of a conservator. Recognizing that in the light of subsequent developments the stock interest in Stray-er’s Business College could not form the basis for the appointment, he nonetheless cóñ'cludéd that, “having appointed * * * a Guardian Ad Litem a temporary conservator and a permanent conservator for the protection of the property of the patient, and since these officers of the court have performed their duties and discharged their responsibilities in such a way that the patient has derived benefit from their actions, the Court feels that they should be compensated for their services rendered.” Accordingly, he invited the conservators to submit statements for their professional services. Though the memorandum is not explicit, Judge Gasch apparently concluded that the conservator was properly appointed on the basis of the remaining property in the District. On December 28, 1966, the court ordered that the funds remaining in the custody of the conservator be divided equally between the temporary and permanent conservators (notwithstanding the earlier award to the temporary conservator, which was never paid).
The report of the auditor, filed February 16, 1967, and ratified by order on March 29, 1967, included the following salient information. Assets actually taken over by the permanent conservator amounted to $3,892, consisting of two dividend checks and two bank accounts. Disbursements totaled $2,954 including $480 paid to the psychiatrist who testified at the March 1 hearing, $912 in payment of Mrs. Mitchell’s state income taxes, and $1,500 paid to the guardian ad litem as part of his authorized fee of $2,381. After deducting his $50 fee, the auditor recommended that the balance of the estate be distributed equally to ap*-pellees Jones and Ballard.
This court granted Mrs. Mitchell leave to appeal in forma pauperis from the orders granting compensation to the conservators and ratifying the report of the auditor. Appellees Jones and Ballard filed no briefs and made no appearance. Counsel for appellee Ensor stated on oral argument that his sole interest was to protect his client from any assessment of costs or attorney’s fees as a result of the conservatorship proceedings. The essence of Mrs. Mitchell’s claim was that a conservator should never have been appointed and therefore she should be made whole, or alternatively, that the compensation awards were excessive in light of the size of the estate.
In attempting to accord substantial justice under the law to all parties on this appeal, we must deviate somewhat from the briefs and direct our gaze at the full factual and legal posture of this case in light of the relevant authority and the fundamental concepts of equity.
The issues are quite basic. They resolve themselves into two questions:
1. In light of our former remand in this case (striking from consideration of the district judge the property of the ward relating to her % interest in Strayer’s Business College, Inc.) did Judge Gasch properly appoint a conservator of the “property” left after said striking ?
2. Was the trial judge on solid legal and equitable ground in awarding, as fees, the total amount of property in the conservator’s possession ?
Although the trial judge indicated compliance with our direction not to base any appointment upon consideration of the Strayer’s stock, the language of his memorandum of reconsideration in light of remand seems to indicate that this property was relied upon at least to the extent of being a well from which to draw compensation for the appointees. We point out, however, that the statute specifies no minimum amount of property necessary for appointment of a conservator. It is reasonable to assume, therefore, that where there is any property in the District of Columbia, the appointment of a conservator is left up to the discretion of the trial judge. Here Judge Gasch viewed the order of this court upon remand and concluded that the appointment of a permanent conservator was proper. Even to the exclusion of the Strayer’s stock there was “property” in the District and we see no apparent abuse of discretion. It may be that Judge Gasch would have denied the petition in the first instance had he known then that Mrs. Mitchell had only $850 in the District. Here, however, where the initial appointments were based on colorable jurisdiction, it was perfectly proper for Judge Gasch to consider the services already performed at the time of the hearing on remand and to conclude, in retrospect, that the conservator was properly appointed. The alternative would have been to void all the proceedings ab initio. The resulting inequities to the guardian ad litem and the conservators are apparent.
We proceed now to the question of the awarding of fees. The District Court awarded the guardian ad litem $2,382 for seventy hours of service. Mr. Las-key was paid $1,500 on account and, to date, has received no more. The temporary and permanent conservators were compensated out of the balance of the estate in the hands of the permanent conservator. This amount came to the figure of $445 for each. It is our duty to determine if these fees are excessive taking into account the statutes, case law and reason.
The statute is silent on the question of compensation of guardians ad litem and conservators. The only helpful statutory language appears in 21 D.C.Code §§ 1503, 1504. Section 1503, dealing with the powers and duties of a conservator, states that he shall have the “same rights and powers with respect to the property of the person as have guardians of the estates of infants.” Section 1504, concerning discharge, states that the “court has the same powers with respect to the property of a person for whom a conservator has been appointed as it has with * * * respect to the property of infants under guardianship.” Section 143 of Title 21 does provide for compensation for guardians of the property of infants. It reads “[t]he court shall allow a reasonable compensation for services rendered by the guardian not exceeding a commission of five per centum of the amounts collected, if and when disbursed.” 21 D.C.Code § 143 (1967). In In re Searle, 118 F.Supp. 273 (D.D.C.1953), the court relied on the predecessors of the above sections, holding that, since the guardianship statute “apparently was the paradigm and the pattern and guide out of which that dealing with conservators sprung, and since the duties of a conservator and a guardian are fundamentally and basically the same, I conclude that the compensation is thereby fixed accordingly.” In Searle, the court held that temporary conservators are to be compensated differently. They were to be awarded a reasonable fee in light of their services, the size of the estate, and the compensation previously awarded the guardian ad litem.
Relying on Searle as authority to compensate these appointees, Judge Gasch bolstered his position by reference to an unjust enrichment concept in that the services of the men greatly increased the net worth of the stock of the ward. A marriage of the rationale of Judge Gasch and the policy behind Searle, in the absence of specific statutory guidance, indicates that the compensation to be awarded guardians ad litem and conservators must be based upon (1) the character of the services rendered, (2) the amount of time spent, (3) the size of the estate administered, and (4) the benefits that accrued to the estate as a result of the services. These criteria are limited only to the extent of reason».
In determining the final disposition of this case on remand, several questions must be answered before compensation may be awarded. Although the guardian ad litem and both conservators submitted detailed statements concerning the services rendered and time spent, serious questions remain as to the size of the estate and the benefits that accrued.
In addition to the $850 in the District originally, the conservators took possession of the two savings accounts and the second dividend check and were at least dealing in Mrs. Mitchell’s behalf with regard to her stock interest. The question is whether conservators appointed in the District of Columbia have the authority and power to take control of the ward’s property located elsewhere. The answer depends upon the law of both the District of Columbia and the jurisdiction in which the property is located. Upon that answer hinges the “size of the estate” for purposes of compensation in this case.
First, although the D.C.Code does not make clear whether the conservator has authority to reach into other jurisdictions, the statutory intent apparently is that, once the jurisdictional basis has been established, the conservator may take control of as much of the ward’s estate as he is able. Nowhere does the statute explicitly limit the conservator to management of the property that forms the basis of his appointment. Indeed, he may be appointed solely on the basis of the ward’s residency, irrespective of any property actually located in the District. 21 D.C.Code § 1501, supra. Further, 21 D.C.Code § 1503 implies that the conservator may extend his reach beyond the borders of the District:
[The conservator] shall have control of the estate, real and personal, of the person for whom he has been appointed conservator, with power to collect all debts due the person, and upon authority of the court to adjust and settle all accounts owing by him * * *. (Emphasis added.)
The only judicial statement on the matter lends further support to this conclusion. In Cooper v. Burton, 75 U.S.App.D.C. 298, 127 F.2d 741 (1942), the court implied, in dicta, that the conservator may take control of property outside the District provided there is personal jurisdiction over the incompetent.
However, authority under the D.C.Code cannot itself give the conservator the power to assert control over property in other jurisdictions. As stated by the Supreme Court, “a guardian appointed by the courts of one State has no authority over the ward’s person or property in another State, except so far as allowed by the comity of that State * * Lamar v. Micou, 112 U.S. 452, 470, 5 S.Ct. 221, 28 L.Ed. 751 (1884); accord, Hoyt v. Sprague, 103 U.S. 613, 631, 26 L.Ed. 585 (1880). Most states do accord such comity, especially where the state of appointment is the ward’s domicile. See Lamar v. Micou, supra at 470. The law of Maryland does not make clear whether a foreign conservator appointed for a Maryland domiciliary will be accorded the necessary comity, though it does quite clearly extend such to a foreign conservator appointed for one who is not a domiciliary of Maryland. See Art. 16, § 148, Md.Ann.Code and Md. Rules of Proc. rule 179. In addition, a foreign conservator has general authority, without complying with local law, to receive money or property located in another state where it is paid or delivered voluntarily. Volpe v. Emigrant Indus. Sav. Bank, 277 App.Div. 543, 101 N.Y.S.2d 82 (1950), aff’d, 303 N.Y. 704, 103 N.E.2d 61 (1951).
Applying these principles to the present case, the record suggests that the bank accounts and second dividend check were delivered to the conservator voluntarily. If this is so, they are legitimately part of the estate. The record shows that the conservators had dealings in Mrs. Mitchell’s behalf with regard to her stock interest, but it is not clear to what extent they actually assumed, or had the power to assume, control over the stock. Proper determination of the size of the estate therefore requires that the record be supplemented.
The record manifests uncertainty concerning whether the services of the guardian and the conservators actually inured to the benefit of Mrs. Mitchell. There is some suggestion that the value of her stock interest was enhanced by some $150,000, though this is sharply disputed by Mrs. Mitchell’s attorneys. From all the record shows, the stock may well have increased in value regardless of the efforts of the conservators. Since the question of benefits is central to a determination of compensation, the record needs to be supplemented by specific findings of fact on this point.
We have carefully considered the other points raised by appellant and find them lacking in merit. Accordingly, we reverse the decision of the trial court in each of these cases and remand to that court for a determination as to (1) the benefits that accrued to the estate of the ward as a result of the services of the guardian ad litem and the conservators, and (2) the extent to which the conservators assumed control of the stock interest. Upon such findings the court is directed to proceed in accordance with this opinion toward final disposition of this case.
Reversed and remanded.
. 21 D.C.Code § 1501 provides in pertinent part:
When an adult residing in or having property in the District of Columbia is unable, by reason of advanced age, mental weakness not amounting to unsoundness of mind, mental Illness, as the latter term is defined by section 21-501, or physical incapacity, properly to care for his property, the United States District Court for the District of Columbia may, upon his petition or the sworn petition of one or more of his relatives or any other person * * * appoint a fit person to be conservator of his property.
. We arrive at this figure by looking to the property in the District at the time of the initial appointments, less the Strayer’s stock interest and less the $1,200 bank account, the situs of which, as a debt, was in Mrs. Mitchell’s domicile, Maryland. See Railroad Co. v. Pennsylvania, 82 U.S. (15 Wall.) 300, 320, 21 L.Ed. 179 (1872).
. Cf. Bakery & Confectionery Workers Int’l Union of America v. Ratner, 118 U.S.App.D.C. 269, 335 F.2d 691 (1964); Ratner v. Bakery & Confectionery Workers Int’l Union of America, 122 U.S.App.D.C. 372, 354 F.2d 504 (1965); Schmidt v. McCarthy, 125 U.S.App.D.C. 131. 369 F.2d 176 (1966); Freeman v. Ryan, 133 U.S.App.D.C. 1, 408 F.2d 1204 (Oct. 16, 1968). These casies, taken together, establish similar standards for compensation of attorneys whose efforts help produce a fund for the benefit of a class.
. Although we decline to adopt a frozen figure of 5%, we see no reason to preclude its use as a flexible rule-of-thumb for fixing reasonable compensation in ordinary 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_casetyp1_7-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Minkin CHANDLER, Plaintiff-Appellant, v. BARCLAYS BANK PLC, International Steel Marketing, Gamille Beshay, Kamil Beshay, Defendants, Banque Du Caire Barclays International, S.A.E. Cairo, Defendant-Appellee.
No. 89-1155.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 22, 1990.
Decided March 22, 1990.
Rehearing and Rehearing En Banc Denied May 4, 1990.
John C. Kaplansky (argued), Southfield, Mich., for Minkin Chandler.
Donald S. Young, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendant Barclays Bank PLC.
Kenneth J. McIntyre, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for Banque Du Caire Barclays Intern., S.A.E. Cairo.
Before KENNEDY and BOGGS, Circuit Judges, and HULL, Chief District Judge.
The Honorable Thomas G. Hull, Chief Judge, United States District Court for the Eastern District of Tennessee.
KENNEDY, Circuit Judge.
Appellant Minkin Chandler filed this action on January 19, 1988, against Barclays Bank PLC (Barclays), an English banking corporation with offices in New York; International Steel Marketing (International Steel), an Egyptian corporation; Gamille and Kamil Beshay, Egyptian citizens and principals of International Steel; and appel-lee Banque du Caire Barclays International S.A.E. Cairo (Banque du Caire), an Egyptian banking corporation. Appellant alleged (1) that payment under a letter of credit issued by Banque du Caire was wrongfully denied, and (2) that defendants Barclays, International Steel, the Beshays, and Banque du Caire conspired to deny payment on the letter of credit in order to allow International Steel to extort a reduction in the price it had agreed to pay for the steel.
Banque du Caire moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(2), arguing that the court lacked personal jurisdiction over it. The District Court agreed, and dismissed Banque du Caire from the action. The court also rejected appellant’s contention that a “national contacts” analysis should be applied in determining whether jurisdiction over Banque du Caire was proper in Michigan. Finally, the court determined that there was no agency relationship between Banque du Caire and the other parties, thereby rejecting appellant’s argument that Banque du Caire subjected itself to the court’s jurisdiction through the actions of its agent(s). Minkin Chandler appeals these three determinations. The other defendants have been dismissed. We AFFIRM the decision of the District Court.
Appellant Minkin Chandler is a Detroit steel supplier. In October of 1986, International Steel entered into a contract to purchase steel from appellant. Payment for the steel was to be made by a letter of credit. To guarantee that a letter of credit would be obtained, International Steel was initially to obtain a letter of guarantee in the amount of $100,000 upon which Minkin Chandler could demand payment from a confirming bank in New York (Barclays) in the event that International Steel did not obtain the promised letter of credit. Following the execution of the contract, International Steel approached Banque du Caire in Cairo, Egypt, and applied for a letter of guarantee. Banque du Caire then established a letter of guarantee in favor of Minkin Chandler in Cairo. Barclays in New York confirmed the letter of guarantee.
After the issuance of the letter of guarantee, International Steel again approached Banque du Caire in Cairo and requested that the bank establish a letter of credit on its behalf in favor of Minkin Chandler. Banque du Caire subsequently issued the letter of credit to International Steel, in the amount of about $1,680,000.00. The letter of credit provided, among other things, that Minkin Chandler could present documents to Barclays in New York, which would act as a confirming bank. In late July of 1987, a representative of Minkin Chandler traveled to New York and presented documents to Barclays, seeking payment under the letter of credit from Barclays. At this time, Banque du Caire was closed due to an Egyptian holiday.
Appellant claims that on August 3, 1987, Barclays denied payment, informing appellant that Barclays had been advised not to make payment under the letter of credit by a “very, very urgent” telefax of Monday, August 3, 1987 from International Steel to Barclays noting two “major discrepancies” in Minkin Chandler’s documents. The tele-fax requested Barclays to withhold payment until after it “check[ed] with our Bank [Banque du Caire].” Minkin Chandler could not reach Banque du Caire, however, during the week of August 3 because of the Egyptian holiday.
On August 4, 1987, Barclays telefaxed to Minkin Chandler a ten-point list of discrepancies, and outlined its reasons for declining payment. When Banque du Caire resumed business following the holiday, it too discovered discrepancies in Minkin Chandler’s documents and advised Bar-clays on August 10, 1987 not to make payment to appellant.
Appellant first argues that there were sufficient contacts between Banque du Caire and the state of Michigan for the court to assert jurisdiction pursuant to the Michigan long-arm statute. Appellant asserts that the letter of credit, in addition to naming a Michigan resident as beneficiary, was sent to and relied upon in Michigan and caused numerous transactions to occur in Michigan.
The Michigan long-arm statute provides, in part:
The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.
Mich.Comp.Laws Ann. § 600.715 (West 1981).
This limited personal jurisdiction provision extends the state’s jurisdiction to the limits permitted by due process requirements. LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1298, (6th Cir.1989) (“Generally speaking, ... ‘[t]he Michigan statute confers on the state courts the maximum scope of personal jurisdiction permitted by the due process clause of the Fourteenth Amendment’.”) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1236 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981)); Sifers v. Horen, 385 Mich. 195, 198-200, 188 N.W.2d 623 (1971). Due process mandates that jurisdiction be exercised only if Ban-que du Caire had sufficient “minimum contact” with the state of Michigan, so that summoning the bank to Michigan would not offend “ ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).
This Court has adopted a three-part test for determining whether personal jurisdiction can properly be exercised over an out-of-state defendant:
First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377, 379 (6th Cir.1978) (quoting Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir.1968)). The plaintiff below has the burden of establishing jurisdiction under this test. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981).
We disagree with appellant’s argument that Banque du Caire purposefully availed itself of the privilege of acting or causing a consequence to occur in Michigan. Several courts have held that the mere issuance of a letter of credit naming a resident of a particular state as beneficiary does not subject the issuing bank to the jurisdiction of that state. For example, the court in Occidental Fire & Casualty Co. v. Continental Illinois Nat’l Bank, 689 F.Supp. 564, 568 (E.D.N.C.1988) stated that “courts which have analyzed the issuance of letters of credit for jurisdictional purposes have come to a uniform conclusion. This conclusion is that jurisdiction cannot be properly based on the issuance of a letter of credit.”
This opinion cited a Third Circuit case reaching the same conclusion. The Third Circuit stated:
We do not think that by issuing a letter of credit for a Rhode Island customer, calling for its performance in Rhode Island, the bank can be said to have subjected itself to the adjudicatory authority of Pennsylvania with respect to its obligations under the letter of credit solely because the beneficiary was a Pennsylvania corporate resident. We agree with the District Court that subjecting the bank to the jurisdiction of a Pennsylvania forum would offend traditional notions of fair play and substantial justice.
Empire Abrasive Equip., Inc. v. H.H. Watson, Inc., 567 F.2d 554, 558 (3d Cir.1977).
The Ninth and Tenth Circuits have reached similar conclusions. In H. Ray Baker, Inc. v. Associated Banking Corp., 592 F.2d 550 (9th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), the Ninth Circuit decided a case similar to the one before us. In Baker, Associated Banking Corp. (ABC) issued an irrevocable letter of credit in favor of Baker, an Ohio corporation doing business in California. The proceeds of the letter were assigned to Interquip Corp., another Ohio corporation doing business in California. Interquip negotiated with Dura-Tire and Rubber Industries, a Philippine corporation, for the sale of equipment to Dura-Tire in the Philippines. All of these negotiations were conducted in San Francisco. Dura-Tire caused ABC to issue the irrevocable letter of credit for payment of the equipment. All negotiations between Dura-Tire and ABC were conducted in the Philippines. The letter of credit originally called for a single shipment and payment in five installments, to be advised through Manufacturers Hanover Trust Company of New York. The letter was amended to permit partial shipments. The goods were shipped and the first installment was paid by Manufacturers Hanover. Baker then assigned the proceeds of the letter of credit to Interquip and notified ABC of the assignment. In-terquip presented the letter of credit for payment at a California bank. The letter was dishonored, purportedly because the equipment did not conform to contract terms.
ABC maintained correspondent banking relationships with six California banks. ABC had non-interest-bearing accounts with those banks for the purpose of processing letters of credit and facilitating the transfer of funds between California and the Philippines. ABC’s maintenance of its accounts in these six banks was its sole contact with California.
The California long-arm statute, like the Michigan statute applicable in the case before this Court, has been interpreted to extend to the outer limits of due process. The Ninth Circuit found that ABC had purposefully invoked the protection of California law in order to reap the benefit of the very type of transaction sued upon, for ABC’s assets in California represented one aspect of correspondent banking relationships undertaken by ABC for the express purpose of providing letter of credit services to the bank’s Philippine clients in their business dealings with American entities. The court further found that the sales contract underlying the letter of credit and on which the dishonor apparently was based was thoroughly connected to California. The court nonetheless found:
The existence of correspondent relationships with the six California banks did not put these banks on any special footing with regard to this letter of credit. While Baker could have negotiated the letter of credit through any bank of its choice, any negotiating bank would have forwarded the draft to the paying bank in New York for reimbursement. ... ABC’s selection of a New York correspondent as the advising and paying bank confined the place of payment to New York, where the draft was later dishonored....
[W]e think on this record that plaintiffs have failed to show that ABC could reasonably have expected the issuance or negotiation of this letter to have effects in California that would make it fair to require it to defend this suit [in California].
Id. at 553.
The facts in the case before us are nearly identical to those in Baker. In fact, fewer contacts exist in the present case, for the letter of credit was neither presented nor dishonored in the state where appellant is arguing jurisdiction exists, as was the case in Baker. Furthermore, Banque du Caire does not possess assets in Michigan similar to those possessed by ABC in California.
In Leney v. Plum Grove Bank, 670 F.2d 878 (10th Cir.1982), the Tenth Circuit decided a similar case. Leney was the designated beneficiary in a letter of credit issued by an Illinois Bank. Illinois resident Sheldon Moss, the Bank’s customer and the designated account party, procured the letter of credit from the Illinois bank at its Illinois location. The Bank mailed the letter to California resident Leney’s attorney in Colorado. According to the letter’s terms, Le-ney would receive payment upon presenting to the Illinois bank the letter of credit accompanied by documents showing Leney had sold to a designated Colorado corporation his interests in certain real and personal property. Leney submitted the letter of credit to his bank in California, which transmitted a sight draft signed by Leney to the Illinois bank for payment. The Illinois bank refused to pay on the sight draft, stating that it would not honor the letter of credit because of the California bank’s improper endorsement and the absence of necessary documents required by the letter of credit.
The court found that asserting jurisdiction in the federal district court in Colorado over the Illinois bank violated due process. The court noted that “[ojther than mailing the letter of credit to a Colorado attorney, the bank’s only connection to Colorado was its probable knowledge that the letter was going to be used in the sale of Colorado property to a Colorado corporation.” Id. at 880. Although this case differs from the one before us because Leney was a California resident whereas Minkin Chandler is a resident of the state where it is arguing jurisdiction exists, the case is factually similar in most other respects.
As in Leney, the record in the present case does not indicate that the parties expected any dispute over the letter of credit to be resolved in Michigan, for appellant did not ask for a letter of credit on a Michigan bank or for confirmation by a Michigan bank. Id. The court in Leney also noted that “Leney had no direct dealings with the Bank with respect to the letter’s issuance. The Bank did nothing in Colorado. Its Illinois customer obtained the letter of credit from the Bank in Illinois.” Id. Similarly, Minkin Chandler had no direct dealings with Banque du Caire with respect to the letter’s issuance. Ban-que du Caire did nothing in Michigan. Its Egyptian customer obtained the letter of credit from the bank in Egypt.
The court in Leney noted that the trial court below relied upon the Colorado Supreme Court case of Van Schaack & Co. v. District Court, 189 Colo. 145, 538 P.2d 425 (1975). The Leney court stated, however, “[Wjhile we are bound by the Colorado Supreme Court’s interpretation of its own statute, we are not bound by its interpretations of the Due Process Clause of the United States Constitution.... We must independently determine whether asserting jurisdiction in the federal district court in Colorado over the Illinois bank violates due process.” Leney, 670 F.2d at 879-80. The Tenth Circuit then proceeded to disagree with the Colorado Supreme Court’s due process analysis.
In Van Schaack, the Colorado Supreme Court upheld jurisdiction over a Kansas bank that had issued a letter of credit on behalf of its Kansas customer to a Colorado beneficiary in connection with obtaining an extension of time on a Colorado real estate transaction. The court found that-no due process violation existed because: (1) the letter of credit induced conduct in Colorado, for the plaintiff relied upon the letter in extending the contract; (2) the cause of action arose from the consequences in Colorado of the cancellation of the letter; and (3) the letter of credit was issued in conjunction with a Colorado real estate transaction having a substantial connection with Colorado. Van Schaack, 189 Colo. at 147, 538 P.2d 425.
We agree with the Tenth Circuit’s statement in Leney that “ ‘[tjhe bank’s obligation under the letter of credit is independent of the underlying sales contract.’ ” Leney, 670 F.2d at 881 (quoting Baker, 592 F.2d at 553). Consequently, our due process analysis of the case before us, like that of the Tenth Circuit in Leney, differs from that of the Colorado Supreme Court in Van Schaack.
Our decision is further buttressed by the reasoning of the court in Stutsman v. Patterson, 457 F.Supp. 189 (C.D.Calif.1978). In that case, the court found that: (1) the fact that a bank issuing a letter of credit may have inquired of a beneficiary by mail as to the manner in which the letter of credit was to be used does not show an intent on the part of the bank to put itself under the protection of the laws of the state in which the beneficiary resides; (2) the fact that the letter was made payable to a California corporation states little more than that the plaintiff is a resident of California, and is thus entitled to little weight; and (3) the issuing bank had no reason to anticipate any profits merely because the letter of credit was issued in California.
Appellant next argues that the court below had jurisdiction over Banque du Caire because of its contacts with the United States as a nation. The District Court noted that all of the cases that it examined allowing for a “national contacts” or “aggregate contacts” approach were cases, unlike the one before us, involving a federal statute. The court agreed with those courts that have rejected the national contacts approach, citing Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985) and Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 418 (9th Cir.1977). The court in Max Daetwyler stated:
Although we do not decide the issue, we can appreciate the argument that a federal statute, prescribing nationwide personal jurisdiction on the basis of a defendant’s aggregated national contacts, might itself be constitutional. We are, however, unaware of any federal statute which presently authorizes district courts to [find] personal jurisdiction upon such aggregated contacts.
Even those few courts which have accepted the national contacts theory have ultimately grounded jurisdiction upon satisfaction of a state long-arm statute.
We conclude that in the absence of some provision within the patent laws authorizing nationwide service of process, the district court’s power to exercise in per-sonam jurisdiction is limited by Fed.R. Civ.P. 4(e) and by the Pennsylvania long-arm statute, whose incorporation by reference, Rule 4(e) requires.
Max Daetwyler, 762 F.2d at 295, 297 (emphasis in original, citations omitted).
Further, the District Court interpreted the United States Supreme Court case of Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), as rejecting the “national contacts” approach. The Court in Omni recognized that under Federal Rule of Civil Procedure 4(e), a federal court looks to either a federal statute or to the state long-arm statute in order to determine whether a defendant is amenable to service of process, a prerequisite to its exercise of personal jurisdiction. The Omni case involved a federal statute, the Commodity Exchange Act, but the Court found that this statute did not contain an implied provision for nationwide service of process in a private cause of action. In so finding, the Court noted, “[I]t would appear that Congress knows how to authorize nationwide service of process when it wants to provide for it.” Id. at 106, 108 S.Ct. at 411.
Appellee argues the Court’s decision in Omni not to address the constitutionality of the aggregate contacts theory was due to the fact that the doctrine has no application where no federal statute with an authorized service of process vehicle is at issue. The Ninth Circuit has agreed with this interpretation of Omni. Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1416 (9th Cir.1989) (“Indeed, a recent Supreme Court decision implies that a national service provision is a necessary prerequisite for a court even to consider a national contacts approach.”). We agree with appel-lee and the Ninth Circuit on this point. The Supreme Court’s statement in Omni that it had “no occasion” to consider the constitutional issues raised by the national contacts theory leads to no other conclusion but that the theory is applicable solely in conjunction with a statutory national service provision. Because the present case is a diversity action and as such does not involve a federal statute with a national service provision, we find that the District Court properly rejected the national contacts approach.
Finally, appellant argues that Banque du Caire and Barclays operated as agents of International Steel and the Beshays, and as agents of each other, and that under the theory of implied agency, the acts of each defendant are attributable to each other. The implied agency arose, appellant alleges, when Barclays received instruction not to pay on the documents from International Steel and Banque du Caire. Appellant alleges that the defendants agreed to act individually and in combination to breach the sales agreement and the obligations under the letter of credit and the confirmation, committed acts in furtherance of that agreement, and that this conspiracy comprised an implied agency arrangement. The District Court disagreed. The court stated that the rule permitting agency to serve as a basis for service to be effected upon a principal under the long-arm statute “means that if a principal allows an agent to act in a jurisdiction, that the principal subjects itself to the jurisdiction of that Court. That agency involves control, general control over that particular agent.” Joint App. at 215. See Avery v. American Honda Motor Car Co., 120 Mich.App. 222, 225, 327 N.W.2d 447 (1982). The District Court then noted, “[T]he best we have here is one party gave a direction to another party. The requirements of control are clearly not present to establish any type of agency relationship.” Joint App. at 215.
As a confirming bank, Barclays acted pursuant to its own independent contractual relationship with Minkin Chandler. Barclays undertook an independent legal duty to make payment under the letter of credit if conforming documents were presented by Minkin Chandler. In fact, appellant’s complaint acknowledges that: (1) Barclays charged appellant a separate fee in return for its services as confirming bank; (2) Barclays failed to exercise its obligation, independent of and in addition to the obligation of any other bank; and (3) Barclays breached its engagement and contract of confirmation, thus indicating that Barclays indeed had an independent contractual obligation. Because “[a]n agent is one who acts on behalf of another,” Lincoln v. Fairfield-Nobel Co., 76 Mich.App. 514, 519, 257 N.W.2d 148 (1977), appellant’s argument that Barclays was an agent is not persuasive.
Because we agree with the District Court’s determinations that: (1) the court lacked personal jurisdiction over Banque du Caire; (2) a national contacts approach is not appropriate in this case; and (3) Ban-que du Caire did not subject itself to the court’s jurisdiction through the actions of an agent, we AFFIRM the decision of the District Court.
. With respect to this point, the fact that the letter of credit was made payable to a Michigan corporation is entitled to little weight by itself, for *‘[i]n virtually every case alleging personal jurisdiction over a foreign corporation this will be the case.” Stutsman v. Patterson, 457 F.Supp. 189, 191 (C.D.Cal.1978).
. See Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 465 (2d Cir.1970) ("Chase is a confirming bank ... and accordingly has all the duties and rights of a confirming bank.... Thus Chase added its own liability to that of the issuing bank, undertook to honor the drafts and was directly obligated as though it were the letter’s issuer to the extent of its confirmation.”).
. Insofar as appellant alleges that jurisdiction exists based upon the existence of a conspiracy, we find that these allegations are unsupported and therefore do not constitute sufficient contacts to justify an exercise of personal jurisdiction. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1237 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981) ("[T]otally unsupported allegations of conspiracy cannot constitute sufficient contacts ... to justify an exercise of personal jurisdiction.... Similarly, the allegation of conspiratorial activities with tortious consequences in the forum state is insufficient to support jurisdiction under the long arm statute in the absence of some minimal factual showing of ... participation in the conspiracy.").
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_appel1_7_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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").
ESTATE OF Nelson A. ROCKEFELLER, Deceased, Laurance S. Rockefeller, J. Richardson Dilworth and Donal S. O’Brien, Jr., Executors and Margaretta F. Rockefeller, Appellants. v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 1041, Docket 84-4182.
United States Court of Appeals, Second Circuit.
Argued April 22, 1985.
Decided May 24, 1985.
William E. Jackson, New York City (Stuart E. Keebler, Joseph M. Persinger, Milbank, Tweed, Hadley & McCloy, New York City), for appellants.
Glenn L. Archer, Jr., Asst. Atty. Gen., Washington, D.C. (Michael L. Paup, Richard Farber, Bruce R. Ellisen, Attys., Tax Div., Dept, of Justice, Washington, D.C.), for appellee.
Before FEINBERG, Chief Judge, and FRIENDLY and NEWMAN, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal by the Estate of Nelson A. Rockefeller and his widow from a decision of the Tax Court, 83 T.C. 368 (1984), Featherston, J., presents a new variation on the old theme of what constitutes “ordinary and necessary expenses paid or incurred ... in carrying on any trade or business,” I.R.C. § 162(a), which are deductible in determining net income. Appellants contended that expenses incurred by Mr. Rockefeller in connection with the confirmation by the Senate and the House of Representatives, pursuant to the Twenty-Fifth Amendment, of his nomination to be Vice President of the United States were such expenses. The Commissioner of Internal Revenue denied this, the Tax Court agreed, and this appeal followed. We affirm.
The case arises as follows: Mr. Rockefeller incurred expenses of $550,159.78 in connection with the confirmation hearings in 1974, primarily for legal and other professional services. The Commissioner does not contend that the expenses were excessive or unreasonable in relation to the services rendered. In their joint income tax return for 1974, which showed a gross income of $4,479,437, Mr. and Mrs. Rockefeller claimed a deduction of $63,275 — an amount of these expenses equal to his salary as Vice President during the year. When the Commissioner of Internal Revenue disallowed this deduction, Mr. Rockefeller’s estate and Mrs. Rockefeller petitioned for review by the Tax Court and asserted that the entire amount of $550,-159.78 was deductible as expenses of the trade or business of “performing the functions of public office.”
The case was submitted on a rather meagre stipulation of facts which cited only Mr. Rockefeller’s tenure as Governor of New York State between January 1959 and December 1973, when he resigned to devote his full time to the Commission on Critical Choices for Americans (1973-74) and the National Commission on Water Quality (1973-74), as showing the trade or business in which Mr. Rockefeller had engaged. However, copies of the hearings before and the reports of the Senate and House Committees on his nomination as Vice President were attached to the stipulation, and the Tax Court’s opinion lists other positions held by Mr. Rockefeller referred to in these hearings, as follows: Coordinator of Inter-American Affairs (1940-44), Assistant Secretary of State for American Republic Affairs (1944-45), Chairman of the Presidential Advisory Board on International Development (1950-51), Undersecretary of Health, Education and Welfare (1953-54), and Special Assistant to the President for International Affairs (1954-55). 83 T.C. at 374-75.
Discussion
Decision turns on the interpretation of the familiar provision of I.R.C. § 162(a), going back to the Revenue Act of 1918, which allows as a deduction
all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.
Also relevant is I.R.C. § 7701(a)(26), adopted as § 48(d) of the Revenue Act of 1934, 48 Stat. 680, 696, ch. 277, which says:
The term ‘trade or business’ includes the performance of the functions of a public office.
Almost all discussions of the problem here at issue begin, and many of them end, with McDonald v. C.I.R., 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed.2d 68 (1944), although in fact it sheds a most uncertain light. McDonald had been appointed to serve an unexpired term as judge on a Pennsylvania court, carrying an annual salary of $12,000, with the understanding that he would be a contestant in the ensuing primary and general elections for a full term of ten years. To obtain the support of his party organization, he was forced to pay an “assessment” of $8,000, which was to be used for the support of the entire ticket; he spent an additional $5,017.27 for expenses of his own campaign. The Commissioner disallowed the deduction of both amounts. The Tax Court affirmed, 1 T.C. 738 (1943), as did a sharply divided Supreme Court. The bases for the decision are not altogether clear. At one point Justice Frankfurter emphasized that McDonald’s “campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.” 323 U.S. at 60, 65 S.Ct. at 97. Perhaps fearing that this being-becoming distinction would cut too widely, Justice Frankfurter elaborated other factors. One was that allowance of a deduction for the assessments paid by McDonald would lead to deductions by persons who were not candidates but paid “such ‘assessments’ out of party allegiance mixed or unmixed by a lively sense of future favors,” id., a proposition which would not necessarily follow and which in any event would not explain the disallowance of McDonald’s own campaign expenses. This was followed by a sentence, again emphasizing the being-becoming distinction but with a different thought added for good measure, 323 U.S. at 60-61, 65 S.Ct. at 97:
To determine allowable deductions by the different internal party arrangements for bearing the cost of political campaigns in the forty-eight states would disregard the explicit restrictions of § 23 confining deductible expenses solely to outlays in the efforts or services — here the business of judging — from which the income flows. Compare Welch v. Helvering, 290 U.S. 111, 115-116 [54 S.Ct. 8, 9, 78 L.Ed.2d 212 (1933)].
After disposing of arguments based on what are now I.R.C. § 165 and § 212(1), he continued with some observations concerning the increased public hostility to campaign contributions by “prospective officeholders, especially judges,” and then concluded on two notes. One was that, 323 U.S. at 63-64, 65 S.Ct. at 98-99:
To find sanction in existing tax legislation for deduction of petitioner’s campaign expenditures would necessarily require allowance of deduction for campaign expenditures by all candidates, whether incumbents seeking reelection or new contenders. To draw a distinction between outlays for reelection and those for election — to allow the former and disallow the latter — is unsupportable in reason. It is even more unsupportable in public policy to derive from what Congress has thus far enacted a handicap against candidates challenging existing office holders. And so we cannot recognize petitioner’s claim on the score that he was a candidate for reelection,
(footnote omitted). The other was the desirability of according special deference to the Tax Court’s determination on a matter of the sort subjudice, id. at 64-65, 65 S.Ct. at 99. The Supreme Court has not had subsequent occasion to revisit the field plowed in McDonald.
The courts have echoed the various themes sounded in McDonald. Some decisions have stressed the being-becoming distinction; see, e.g., Diggs v. C.I.R., 715 F.2d 245, 250 (6 Cir.1983). Others have emphasized the policy argument against deduction of campaign expenses, namely, that allowing such deductions would involve the whole community in partial subsidization of the electoral expenses of a particular candidate — a subsidy that would pay a larger amount of the campaign expenses of high than of low bracket candidates. See, e.g., James B. Carey, 56 T.C. 477, 479-81 (1971), aff'd per curiam, 460 F.2d 1259 (4 Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 325, 34 L.Ed.2d 257 (1972). The appellants distinguish the latter cases, stressing that the expenses here at issue were not incurred in an election in which Mr. Rockefeller was pitted against another citizen but in a confirmation in which he was the only candidate. However, the policy argument in McDonald is only dubiously applicable to Campbell v. Davenport, 362 F.2d 624, 626 (5 Cir.1966), Nichols v. C.I.R., 511 F.2d 618 (5 Cir.) (en banc), cert. denied, 423 U.S. 912, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975), and Levy v. United States, 535 F.2d 47, 26 Ct.Cl. 97, cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976), disallowing the deduction of small qualification fees payable by any candidate to his party to help to defray the costs of conducting the primary election and of which “[n]o part ... was used to espouse the causes of party candidates in the general election.” Nichols, supra, 511 F.2d at 619. Further support for the Commissioner’s position can be found in Joseph W. Martino, 62 T.C. 840, 844 (1974), disallowing deduction of legal fees incurred by a successful primary candidate in defending his victory against an election contest suit filed by his opponent; Martino, like Mr. Rockefeller, was not seeking the suffrage of the people as against another candidate.
Appellants’ principal argument is that a post-McDonald decision of the Tax Court, in which the Commissioner has acquiesced, David J. Primuth, 54 T.C. 374 (1970), has undermined the being-becoming distinction. Primuth, the secretary-treasurer of a small corporation, Foundry Allied Industries, enlisted the aid of a “head-hunter” organization to find him a better job. This work resulted in his employment as “secretary-controller” of a company with greater geographical scope. The Tax Court held that the fees and expenses paid to the headhunter organization were deductible under I.R.C. § 162.
Judge Sterrett’s opinion for a plurality took off from the proposition that “a taxpayer may be in the trade or business of being an employee, such as a corporate executive or manager,” 54 T.C. at 377, rather than or in addition to the trade or business of holding a particular job, citing numerous cases including our own Hochschild v. C.I.R., 161 F.2d 817 (1947). With that established, Judge Sterrett believed that “the problem presented ... virtually dissolve[d] for it is difficult to think of a purer business expense than one incurred to permit such an individual to continue to carry on that very trade or business — albeit with a different corporate employer.” 54 T.C. at 379. However, he proceeded to emphasize the relatively narrow scope of the decision, id.:
Furthermore, the expense had no personal overtones, led to no position requiring greater or different qualifications than the one given up, and did not result in the acquisition of any asset as that term has been used in our income tax laws. It was expended for the narrowest and most limited purpose. It was an expense which must be deemed ordinary and necessary from every realistic point of view in today’s marketplace where corporate executives change employers with a noticeable degree of frequency. We have said before, and we say again, that the business expenses which an employee can incur in his own business are rare indeed. Virtually all his expenses will be incurred on behalf of, and in furtherance of, his corporate employer’s business. What we have here, however, is an exception to that rule.
(footnote omitted). Judge Tannenwald, joined by three other judges, concurred: they were concerned over the “subtle distinctions” which they saw developing in the deduction of employment agency fees and suggested that “everyday meaning” should be the touchstone in interpreting § 162. 54 T.C. at 382. In a separate concurring opinion, Judge Simpson took issue with language in the plurality opinion which he feared might confine the decision to cases where the taxpayer actually secured a new job. Id. at 383. Judge Featherston’s concurrence placed greater weight on a Revenue Ruling that explicitly “allow[ed] deductions for fees paid to employment agencies for securing employment.” Id. at 384. Six judges dissented. The Department of Justice rejected the Commissioner’s request for an appeal and the Commissioner acquiesced in the result, 1972-2 Cum.Bul. 2 (1972).
In Leonard F. Cremona, 58 T.C. 219 (1972), a majority of the Tax Court rejected an attempt by the Commissioner to contain Primuth to cases where the employee had in fact obtained a new position. Again the Department of Justice declined a request to appeal and the Commissioner acquiesced, 1975-1 Cum.Bul. 1 (1975).
However, the erosion of the being-becoming distinction effected by Primuth and Cremona and the Commissioner’s acquiescence in these decisions was partial only. The Tax Court, with the approval of the courts of appeals, has limited deductibility to cases where the taxpayer was seeking employment in the same trade or business. Moreover, the courts have insisted on a high degree of identity in deciding the issue of sameness. Thus, in William D. Glenn, 62 T.C. 270 (1974), the court found that the broader scope of activities permitted in Tennessee to certified public accountants as compared with public accountants made the former a new trade or business and, in consequence, that the expense of taking a review course designed to assist the taxpayer in qualifying for certification was not deductible. Similarly, being a registered pharmacist constitutes a different trade or business than being an intern pharmacist, so that expenses of attending courses on pharmacology were not deductible, Gary Antzoulatos, T.C.Memo. 1975-327 (1975). In Joel A. Sharon, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9 Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979), the Tax Court disallowed an IRS attorney’s deductions for expenses related to taking the California bar examination. The court found that these expenditures would permit the taxpayer to engage in the new “trade or business” of the general practice of law in the State of California. The Ninth Circuit agreed with the Tax Court’s reasoning that private practice involved “significantly different tasks and activities” from those required of an IRS lawyer, 591 F.2d at 1275. See, to the same effect, Joseph J. Vetrick, T.C. Memo. 1978-83 (1978), aff'd, 628 F.2d 885 (5 Cir.1980). The Tax Court has also disallowed a deduction for helicopter training expenses by an airline pilot. Edward C. Lee, T.C. Memo. 1981-26 (1981), aff'd on other grounds, Lee v. C.I.R., 723 F.2d 1424 (9 Cir.1984). The court found that “a helicopter pilot is in a different trade or business than is an airline pilot” and, since the taxpayer flew only fixed-wing aircraft in his current employment, “the helicopter flight training [led] to Mr. Lee’s qualification in a new trade or business.” Joseph Sorin Schneider, supra, T.C. Memo. 1983-753 (1983), denied a deduction sought by a taxpayer who had resigned from the U.S. Army with a captain’s commission and who later, after graduation, entered the business world as a consultant, for amounts spent in applying to graduate schools, in getting the graduate degrees of M.B.A. and M.P.A. at Harvard, and in seeking a summer job in Europe. The court said that the taxpayer’s business had been that of an Army officer and rejected his claim that he had been in the business of being a “manager” — a claim strongly resembling the one made here that Mr. Rockefeller was in the business of being “a governmental executive.” In Roger Eugene Evans, T.C. Memo. 1981-413 (1981), the court denied'a deduction for job seeking expenses to a taxpayer who had been in the Air Force for 22V2 years and had risen to the rank of Lieutenant Colonel and the post of special assistant to the commander of an Air Force base. The court was convinced that “petitioner’s service as an Air Force officer cannot be compared to any employment he might have obtained outside the Air Force” and that while he “undoubtedly sought employment that would utilize the skills he had acquired during his military career, he [had] failed to show that there would not be substantial differences between the employment he sought to obtain in the private sector and his service as an Air Force officer.” In sum, the Tax Court’s decisions have adopted what Judge Tannenwald, in his concurring opinion in Primuth, characterized as “the simple test of comparing the position which the taxpayer occupied before and after the change,” 54 T.C. at 382, and conform to the statement in Kenneth C. Davis, 65 T.C. 1014, 1019 (1976), that “[i]f substantial differences exist in the tasks and activities of various occupations or employments, then each such occupation or employment constitutes a separate trade or business.”
Appellants’ brief uses a number of different phrases to describe Mr. Rockefeller’s trade or business at the time of his nomination to be Vice President — “an executive in federal and state governments” (p. 8); “an executive in public office” (p. 8); “an executive in public service” (p. 17); and “a governmental executive” (p. 22). In fact, the only public posts Mr. Rockefeller held at the time of his nomination were the chairmanships of two commissions, posts in which he had no executive duties. One of these, the National Commission on Water Quality was created by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, to review water pollution control methods and issue a report to Congress recommending modifications. Although Mr. Rockefeller was elected chairman by the other members when he joined the Commission while still Governor of New York, the record reveals almost nothing about his activities there. The Commission on Critical Choices for Americans was an idea of Mr. Rockefeller’s. It was not a governmental body, although its membership included some members of Congress and of the executive branch. Since federal funding was denied, the Commission was funded from private sources and foundation grants. If only these two activities were to be considered, it would be plain beyond all argument that holding the chairmanship of these Commissions and being Vice President are not the same trade or business but rather separate trades or businesses, if indeed membership on the commissions, particularly the Commission on Critical Choices, was a trade or business at all.
However, a taxpayer who is unemployed when the expenses are incurred is “viewed as still engaged in the business of providing the type of services performed for [his] prior employer, unless ‘there is a substantial lack of continuity between the time of [the employee’s] past employment and the seeking of the new employment.’ ” 1 Bittker, Federal Taxation of Income, Estates and Gifts § 20.4.6, at 20-85 to 20-86 (1981), quoting Rev.Rul. 75-120, 1975-1 Cum.Bul. 55, at 56; see, 4A Mertens, The Law of Federal Income Taxation § 25.08, at 33 (1985) (taxpayer’s “trade or business [does] not cease to exist during a reasonable period of transition”). See also Stephen G. Sherman, supra, T.C. Memo. 1977-301. Appellants urge that this principle allows us to look to Mr. Rockefeller’s fifteen years of service as Governor of New York in considering whether the confirmation expenses on his nomination to be Vice President were in connection with the continuation of the same trade or business. We disagree, for two reasons. In order to take advantage of what is called the “hiatus” principle, a taxpayer must at least show that during the hiatus he intended to resume the same trade or business. See Sherman, supra, T.C. Memo. 1977-301. There is no such showing here. Mr. Rockefeller clearly did not intend to run again for Governor after having resigned that office after holding it for fifteen years. Indeed, the stipulation states that Mr. Rockefeller resigned the governorship “to devote his full time to the Chairs” of the two commissions, and there is nothing to suggest that he was contemplating holding executive public office again. The Vice Presidency became available only due to the resignation of President Nixon in the summer of 1974 — an event that was not foreseeable until shortly before it occurred. We also cannot fault the Tax Court’s holding that being governor of the second most populous state in the union and being Vice President of the United States are not the same trade or business in the narrow sense in which sameness has been consistently characterized. While there are certain areas of overlap, the governorship entails many duties — enforcement of the laws of the state, developing and promoting new laws, supervising a multitude of departments and agencies having thousands of employees and spending billions of dollars, proposing and securing the passage of a budget and the revenues needed to meet it, making appointments, and lobbying for the interests of the state with the Federal Government — which either find no counterparts in the Vice Presidency or find them only to the extent, usually quite limited, which the President has directed. On the other hand, the Vice Presidency involves many duties not found in the governorship of New York — presiding over the Senate, acting on behalf of the President on ceremonial occasions both within and without the United States, and executing special assignments by the President — not to speak of the Vice President’s most important task, readying himself for the possibility of assuming the Presidency on a moment’s notice. Although positions with somewhat different duties and responsibilities may be found to be within the same trade or business, whether in public or private employment, the Tax Court’s finding that the Vice Presidency involved a trade or business for Mr. Rockefeller different from any in which he was engaged at the time of his nomination is not one that we are free to disturb, see I.R.C. § 7482(a).
Appellants ask us to take a still broader view and consider Mr. Rockefeller as having been engaged in the same trade or business since his appointment as Coordinator of Inter-American Affairs in 1940. But the cases do not recognize a definition of “trade or business” wide enough to bring all Mr. Rockefeller’s various posts within it. While there might be sufficient resemblance and continuity between the posts of Coordinator of Inter-American Affairs which Mr. Rockefeller held between 1940 and 1944 and that of Assistant Secretary of State for American Republic Affairs which he held between 1944 and 1945 to have qualified him as being in the business of being a public servant with special interest and expertise in Latin America, we see little resemblance between these positions and his service as Undersecretary of Health, Education and Welfare in 1953 and 1954 or as Governor of New York between 1959 and 1973. Furthermore there are substantial gaps between Mr. Rockefeller’s various posts — five' years between 1945 and 1950, one and one-half years between 1951 and 1953, three years between 1955 and 1958 — far longer than the “hiatus” theory would recognize. See, e.g., Canter v. United States, 354 F.2d 352, 173 Ct.Cl. 723 (1965) (taxpayer who discontinued nursing activities for more than four years held not to retain status of being in the trade or business of nursing); Peter G. Corbett, 55 T.C. 884 (1971). See also Rev.Rul. 68-591, 1968-2 Cum.Bul. 73 (1968) (“Ordinarily, a suspension [of employment] for a period of a year or less, after which the taxpayer resumes the same ... trade or business, will be considered temporary”). Our reading of the record shows Mr. Rockefeller as a distinguished and public-spirited citizen, ready, for a third of a century, to put his great abilities at the disposal of the government in both appointive and elective office. While he was, of course, entitled to deduct unreimbursed expenses incurred in performing the functions of any of the many offices he held, I.R.C. § 7701(a)(26), the Tax Court was warranted in holding that he had not engaged in any trade or business comparable to the Vice Presidency, within the rather narrow sense which the courts have reasonably given to the concept of identity. We therefore have no occasion to decide whether the “policy” reasons underlying the decisions disallowing expenses incurred in elections apply to expenses incurred in seeking confirmation to an appointive office which would seem to be properly regarded as the same trade or business, or whether if they generally do not, there are special considerations for applying them to the unusual bicameral confirmation required by the Twenty-Fifth Amendment which the Commissioner characterizes as the equivalent of an election.
The judgment of the Tax Court is affirmed.
. Mrs. Rockefeller’s involvement arises solely because she and Mr. Rockefeller filed a joint return.
. The Senate and Conference Committee Reports describe this addition as "clerical” and "declaratory of existing law,” S.Rep. No. 558, 73d Cong., 2d Sess. at 29; H.R.Rep. No. 1385, 73d Cong., 2d Sess. at 17 (Conference Report) (1934). A discussion before the Senate Committee on Finance suggests that the primary reason for the provision was to overcome doubts whether Senators were engaged in a "trade or business” so as to permit deduction for extra staff and telephone expenses. 1 Hearings before Committee on Finance on H.R. 7835, 73d Cong., 2d Sess. (March 6, 1934), p. 29-30. The Ninth Circuit has said that § 48(d) was adopted to modify the general rule that “in order for an activity to be considered a trade or business under Section 162 it must be engaged in for profit.” Frank v. United States, 577 F.2d 93, 95 (9 Cir.1978). The court cited Jackling v. C.I.R., 9 B.T.A. 312, 320 (1927), as the "best statement of the [existing] law" with respect to public offir cers, which the amendment was said to have codified. In Jackling, the Board of Tax Appeals allowed business deductions by a war-time government employee whose salary was only one dollar a year and rejected the Commissioner’s argument that the expenses were not deductible because the taxpayer’s employment was not profit motivated. Further support for this reading of § 48(d) can be found in Revenue Ruling 55-109, 1955-1 Cum.Bul. 262 (1955), in which the Commissioner interpreted the section as allowing a public office to be treated as a trade or business “even though the incumbent thereof may serve without compensation, a factor which is ordinarily regarded as a prerequisite to the pursuit of a trade or business."
. Justice Frankfurter delivered a plurality opinion for himself, Chief Justice Stone and Justices Roberts and Jackson. Justice Rutledge concurred in the result. Justice Black dissented for himself and Justices Reed, Douglas and Murphy. It may not be altogether accidental that three of the dissenters had held elective office, an experience not shared by any member of the plurality.
It should be noted that the dissenters did not disagree with the plurality’s conclusion that the amounts were not "ordinary and necessary expenses of a trade or business”; they argued rather that the expenses came within what is now § 212(1), adopted in 1942 to overrule Higgins v. C.I.R., 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941), which allowed deduction of "the ordinary and necessary expenses [of an individual] paid or incurred ... for the production or collection of income.”
. The force of this distinction between election and confirmation expenses is debatable. Mr. Rockefeller’s expenses included not simply amounts incurred in preparing answers to questions of Senators and Representatives but also amounts incurred, with entire propriety, in convincing Congress that he was a good selection for Vice President. Nomination of Nelson A. Rockefeller to be Vice President of the United States: Hearings before the House Comm, on the Judiciary, 93d Cong., 2d Sess., pp. 1-3 (1974). While Mr. Rockefeller was not in direct contest with anyone, others were waiting in the wings if Congress was not so convinced. For reasons developed below, we are not required to pass on the force of the distinction.
. Most of these cases concerned education expenses, as to which there is a regulation, Treas. Reg. § 1.162-5 (1960). This elaborates on the statute by defining a specific type of deductible expenses, § 1.162-5(a)(2), and by prohibiting the deduction of expenses incurred in order to attain minimum educational requirements for a position, § 1.162-5(b)(2), and expenses for a program of study leading to qualification in a new trade or business, § 1.162-5(b)(3). However, the Tax Court cites education cases in decisions regarding other types of expenses incurred in obtaining a new position, see, e.g., Primuth, supra, 54 T.C. at 378; Joseph Sorin Schneider, T.C. Memo. 1983-753 (1983).
. Although the court quoted Treas.Reg. § 1.162-5, including the minimum educational requirement, § 1.162-5(b)(2), it did not base its decision upon that section.
. The court distinguished Stephen G. Sherman, T.C.Memo. 1977-301 (1977), which had allowed deduction of expenses of attending the Harvard Business School by a taxpayer who had been employed as a civilian by the Army and Air Force Exchange Service as chief of its Plans and Programs office and, after, graduating and applying unsuccessfully for reinstatement to his former job, was hired by private industry as a director of planning and research.
. The members of the Commission on Water Quality who were not officers or employees of the United States were paid by the Government on a per diem basis, 33 U.S.C. § 1325(f); it does not appear whether Mr. Rockefeller accepted such payments, at least for the period when he was Governor of New York. The record is silent with respect to what salary, if any, was paid to Mr. Rockefeller as Chairman of the Commission on Critical Choices for Americans.
. E.g., a judge of a federal district court nominated to a court of appeals, a judge of a state court nominated to a federal court, or a foreign service officer nominated to be an ambassador.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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sc_respondent
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029
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
UNITED STATES v. MONSANTO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 88-454.
Argued March 21, 1989
Decided June 22, 1989
Acting Solicitor General Bryson argued the cause for the United States. With him on the briefs were Assistant Attorney General Dennis, Edwin S. Kneedler, and Sara Criscitelli.
Edward M. Chikofsky argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John A. Gordnier, Senior Assistant Attorney General, and Gary W. Schons, Deputy Attorney General; and for Eugene R. Anderson, pro se.
Briefs of amici curiae urging affirmance were filed for the Committees on Criminal Advocacy and Criminal Law of the Association of the Bar of the City of New York et al. by Arthur L. Liman; and for the National Association of Criminal Defense Lawyers et al. by Joseph Beeler and Bruce J. Winick.
Briefs of amici curiae were filed for the American Bar Association by Robert D. Raven, Charles G. Cole, Antonia B. Ianniello, and Termnee G. Reed; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski.
Justice White
delivered the opinion of the Court.
The questions presented here are whether the federal drug forfeiture statute authorizes a district court to enter a pretrial order freezing assets in a defendant’s possession, even where the defendant seeks to use those assets to pay an attorney; if so, we must decide whether such an order is permissible under the Constitution. We answer both of these questions in the affirmative.
I — I
In July 1987, an indictment was entered, alleging that respondent had directed a large-scale heroin distribution enterprise. The multicount indictment alleged violations of racketeering laws, creation of a continuing criminal enterprise (CCE), and tax and firearm offenses. The indictment also alleged that three specific assets — a home, an apartment, and $35,000 in cash — had been accumulated by respondent as a result of his narcotics trafficking. These assets, the indictment alleged, were subject to forfeiture under the Comprehensive Forfeiture Act of 1984 (CFA), 98 Stat. 2044, as amended, 21 U. S. C. § 853(a) (1982 ed., Supp. V), because they were “property constituting, or derived from... proceeds... obtained” from drug-law violations.
On the same day that the indictment was unsealed, the District Court granted the Government’s ex parte motion, pursuant to § 853(e)(1)(A), for a restraining order freezing the above-mentioned assets pending trial. Shortly thereafter, respondent moved to vacate this restraining order, to permit him to use the frozen assets to retain an attorney. Respondent’s motion further sought a declaration that if these assets were used to pay an attorney’s fees, §853(c)’s third-party transfers provision would not subsequently be used to reclaim such payments if respondent was convicted and his assets forfeited. Respondent raised various statutory challenges to the restraining order, and claimed that it interfered with his Sixth Amendment right to counsel of choice. The District Court denied the motion to vacate.
On appeal, the Second Circuit concluded that respondent’s statutory and Sixth Amendment challenges were lacking, but remanded the case to the District Court for an adversarial hearing “at which the government ha[d] the burden to demonstrate the likelihood that the assets are forfeitable”; if the Government failed its burden at such a hearing, the Court of Appeals held, any fees paid to an attorney would be exempt from forfeiture irrespective of the final outcome at respondent’s trial. 836 F. 2d 74, 84 (1987). Pursuant to this mandate, on remand, the District Court held a 4-day hearing on whether continuing the restraining order was proper. At the end of the hearing, the District Court ruled that it would continue the restraining order because the Government had “overwhelmingly established a likelihood” that the property in question would be forfeited at the end of trial. App. to Pet. for Cert. 86a. Ultimately, respondent’s criminal case proceeded to trial, where he was represented by a Criminal Justice Act-appointed attorney.
In the meantime, the Second Circuit vacated its earlier opinion and heard respondent’s appeal en banc. The en banc court, by an 8-to-4 vote, ordered that the District Court’s restraining order be modified to permit the restrained assets to be used to pay attorney’s fees. 852 F. 2d 1400 (1988). The Court was sharply divided as to its rationale. Three of the judges found that the order violated the Sixth Amendment, while three others questioned it on statutory grounds; two judges found § 853 suspect under the Due Process Clause for its failure to include a statutory provision requiring the sort of hearing that the panel had ordered in the first place. The four dissenting judges would have upheld the restraining order.
We granted certiorari, 488 U. S. 941 (1988), because the Second Circuit’s decision created a conflict among the Courts of Appeals over the statutory and constitutional questions presented. We now reverse.
II
We first must address the question whether § 853 requires, upon conviction, forfeiture of assets that an accused intends to use to pay his attorneys.
A
“In determining the scope of a statute, we look first to its language.” United States v. Turkette, 452 U. S. 576, 580 (1981). In the case before us, the language of §853 is plain and unambiguous: all assets falling within its scope are to be forfeited upon conviction, with no exception existing for the assets used to pay attorney’s fees—or anything else, for that matter.
As observed above, § 853(a) provides that a person convicted of the offenses charged in respondent’s indictment “shall forfeit... any property” that was derived from the commission of these offenses. After setting out this rule, § 853(a) repeats later in its text that upon conviction a sentencing court “shall order” forfeiture of all property described in § 853(a). Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied, or broader words to define the scope of what was to be forfeited. Likewise, the statute provides a broad definition of “property” when describing what types of assets are within the section’s scope: “real property... tangible and intangible personal property, including rights, privileges, interests, claims, and securities.” 21 U. S. C. § 853(b) (1982 ed., Supp. V). Nothing in this all-inclusive listing even hints at the idea that assets to be used to pay an attorney are not “property” within the statute’s meaning.
Nor are we alone in concluding that the statute is unambiguous in failing to exclude assets that could be used to pay an attorney from its definition of forfeitable property. This argument, advanced by respondent here, see Brief for Respondent 12-19, has been unanimously rejected by every Court of Appeals that has finally passed on it, as it was by the Second Circuit panel below, see 836 F. 2d, at 78-80; id., at 85-86 (Oakes, J., dissenting); even the judges who concurred on statutory grounds in the en banc decision did not accept this position, see 852 F. 2d, at 1405-1410 (Winter, J., concurring). We note also that the Brief for American Bar Association as Amicus Curiae 6 frankly admits that the statute “on [its] face, broadly cover[s] all property derived from alleged criminal activity and contain[s] no specific exemption for property used to pay bona fide attorneys’ fees.”
Respondent urges us, nonetheless, to interpret the statute to exclude such property for several reasons. Principally, respondent contends that we should create such an exemption because the statute does not expressly include property to be used for attorneys’ fees, and/or because Congress simply did not consider the prospect that forfeiture would reach assets that could be used to pay for an attorney. In support, respondent observes that the legislative history is “silent” on this question, and that the House and Senate debates fail to discuss this prospect. But this proves nothing: the legislative history and congressional debates are similarly silent on the use of forfeitable assets to pay stockbroker’s fees, laundry bills, or country club memberships; no one could credibly argue that, as a result, assets to be used for these purposes are similarly exempt from the statute’s definition of forfeit-able property. The fact that the forfeiture provision reaches assets that could be used to pay attorney’s fees, even though it contains no express provisions to this effect, “‘does not demonstrate ambiguity’” in the statute: ‘“It demonstrates breadth.’” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985) (quoting Haroco, Inc. v. American Nat. Bank & Trust Co. of Chicago, 747 F. 2d 384, 398 (CA7 1984)). The statutory provision at issue here is broad and unambiguous, and Congress’ failure to supplement § 853(a)’s comprehensive phrase — “any property” — with an exclamatory “and we even mean assets to be used to pay an attorney” does not lessen the force of the statute’s plain language.
We also find unavailing respondent’s reliance on the comments of several legislators — made following enactment — to the effect that Congress did not anticipate the use of the forfeiture law to seize assets that would be used to pay attorneys. See Brief for Respondent 15-16, and n. 9 (citing comments of Sen. Leahy and Reps. Hughes and Shaw). As we have noted before, such postenactment views “form a hazardous basis for inferring the intent” behind a statute, United States v. Price, 361 U. S. 304, 313 (1960); instead, Congress’ intent is “best determined by [looking to] the statutory language that it chooses,” Sedima, S. P. R. L., swpra, at 495, n. 13. Moreover, we observe that these comments are further subject to question because Congress has refused to act on repeated suggestions by the defense bar for the sort of exemption respondent urges here, even though it has amended § 853 in other respects since these entreaties were first heard. See Pub. L. 99-570, §§ 1153(b), 1864, 100 Stat. 3207-13, 3207-54.
In addition, we observe that in the very same law by which Congress adopted the CFA — Pub. L. 98-473, 98 Stat. 1837-Congress also adopted a provision for the special forfeiture of collateral profits (e. g., profits from books, movies, etc.) that a convicted defendant derives from his crimes. See Victims of Crime Act of 1984, 98 Stat. 2175-2176 (now codified at 18 U. S. C. §§3681-3682 (1982 ed., Supp. V)). That forfeiture provision expressly exempts “pay[ments] for legal representation of the defendant in matters arising from the offense for which such defendant has been convicted, but no more than 20 percent of the total [forfeited collateral profits] may be so used.” §3681(c)(l)(B)(ii). Thus, Congress adopted express ly — in a statute enacted simidtaneously with the one under review in this case — the precise exemption from forfeiture which respondent asks us to imply into §853. The express exemption from forfeiture of assets that could be used to pay attorney’s fees in Chapter XIV of Pub. L. 98-473 indicates to us that Congress understood what it was doing in omitting such an exemption from Chapter III of that enactment.
Finally, respondent urges us, see Brief for Respondent 20-29, to invoke a variety of general canons of statutory construction, as well as several prudential doctrines of this Court, to create the statutory exemption he advances; among these doctrines is our admonition that courts should construe statutes to avoid decision as to their constitutionality. See, e. g., Edward, J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); NLRB. v. Catholic Bishop of Chicago, 440 U. S. 490, 500 (1979). We respect these canons, and they are quite often useful in close cases, or when statutory language is ambiguous. But we have observed before that such “interpretative canon[s are] not a license for the judiciary to rewrite language enacted by the legislature.” United States v. Albertini, 472 U. S. 675, 680 (1985). Here, the language is clear and the statute comprehensive: §853 does not exempt assets to be used for attorney’s fees from its forfeiture provisions.
In sum, whatever force there might be to respondent’s claim for an exemption from forfeiture under § 853(a) of assets necessary to pay attorney’s fees — based on his theories about the statute’s purpose, or the implications of interpretative canons, or the understandings of individual Members of Congress about the statute’s scope — “[t]he short answer is that Congress did not write the statute that way.” United States v. Naftalin, 441 U. S. 768, 773 (1979).
B
Although § 853(a) recognizes no general exception for assets used to pay an attorney, we are urged that the provision in § 853(e)(1)(A) for pretrial restraining orders on assets in a defendant’s possession should be interpreted to include such an exemption. It was on this ground that Judge Winter concurred below. 852 F. 2d, at 1405-1411.
The restraining order subsection provides that, on the Government’s application, a district court “may enter a restraining order or injunction... or take any other action to preserve the availability of property... for forfeiture under this section.” 21 U. S. C. §853(e)(1) (1982 ed., Supp. V). Judge Winter read the permissive quality of the subsection (i. e., “may enter”) to authorize a district court to employ “traditional principles of equity” before restraining a defendant’s use of forfeitable assets; a balancing of hardships, he concluded, generally weighed against restraining a defendant’s use of forfeitable assets to pay for an attorney. 852 F. 2d, at 1406. Judge Winter further concluded that assets not subjected to pretrial restraint under § 853(e), if used to pay an attorney, may not be subsequently seized for forfeiture to the Government, notwithstanding the authorization found in § 853(c) for recoupment of forfeitable assets transferred to third parties.
This reading seriously misapprehends the nature of the provisions in question. As we have said, § 853(a) is categorical: it contains no reference at all to § 853(e) or § 853(c), let alone any reference indicating that its reach is limited by those sections. Perhaps some limit could be implied if these provisions were necessarily inconsistent with § 853(a). But that is not the case. Under § 853(e)(1), the trial court “may” enter a restraining order if the United States requests it, but not otherwise, and it is not required to enter such an order if a bond or some other means to “preserve the availability of property described in subsection (a) of this section for forfeiture” is employed. Thus, § 853(e)(1)(A) is plainly aimed at implementing the commands of § 853(a) and cannot sensibly be construed to give the district court discretion to permit the dissipation of the very property that § 853(a) requires be forfeited upon conviction.
We note that the “equitable discretion” that is given to the judge under § 853(e)(1)(A) turns out to be no discretion at all as far as the issue before us here is concerned: Judge Winter concludes that assets necessary to pay attorney’s fees must be excluded from any restraining order. See 852 F. 2d, at 1407-1409. For that purpose, the word “may” becomes “may not.” The discretion found in §853(e) becomes a command to use that subsection (and § 853(c)) to frustrate the attainment of §853(a)’s ends. This construction is improvident. Whatever discretion Congress gave the district courts in §§ 853(e) and 853(c), that discretion must be cabined by the purposes for which Congress created it: “to preserve the availability of property... for forfeiture.” We cannot believe that Congress intended to permit the effectiveness of the powerful “relation-back” provision of § 853(c), and the comprehensive “any property... any proceeds” language of § 853(a), to be nullified by any other construction of the statute.
This result may seem harsh, but we have little doubt that it is the one that the statute mandátes. Section 853(c) states that “[a]ll right, title, and interest in [forfeitable] property... vests in the United States upon the commission of the act giving rise to forfeiture.” Permitting a defendant to use assets for his private purposes that, under this provision, will become the property of the United States if a conviction occurs cannot be sanctioned. Moreover, this view is supported by the relevant legislative history, which states that “[t]he sole purpose of [§ 853’s] restraining order provision... is to preserve the status quo, i. e., to assure the availability of the property pending disposition of the criminal case.” S. Rep. No. 98-225, p. 204 (1983). If, instead, the statutory interpretation adopted by Judge Winter’s concurrence were applied, this purpose would not be achieved.
We conclude that there is no exemption from § 853’s forfeiture or pretrial restraining order provisions for assets which a defendant wishes to use to retain an attorney. In enacting §853, Congress decided to give force to the old adage that “crime does not pay.” We find no evidence that Congress intended to modify that nostrum to read, “crime does not pay, except for attorney’s fees.” If, as respondent and supporting amici so vigorously assert, we are mistaken as to Congress’ intent, that body can amend this statute to otherwise provide. But the statute, as presently written, cannot be read any other way.
Ill
Having concluded that the statute authorized the restraining order entered by the District Court, we reach the question whether the order violated respondent’s right to counsel of choice as protected by the Sixth Amendment or the Due Process Clause of the Fifth Amendment.
A
Respondent’s most sweeping constitutional claims are that, as a general matter, operation of the forfeiture statute interferes with a defendant’s Sixth Amendment right to counsel of choice, and the guarantee afforded by the Fifth Amendment’s Due Process Clause of a “balance of forces” between the accused and the Government. In this regard, respondent contends, the mere prospect of post-trial forfeiture is enough to deter a defendant’s counsel of choice from representing him.
In another decision we announce today, Caplin & Drys-dale, Chartered v. United States, post, p. 617, we hold that neither the Fifth nor the Sixth Amendment to the Constitution requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay that defendant’s legal fees. We rely on our conclusion in that case to dispose of the similar constitutional claims raised by respondent here.
B
In addition to the constitutional issues raised in Caplin & Drysdale, respondent contends that freezing the assets in question before he is convicted — and before they are finally adjudged to be forfeitable — raises distinct constitutional concerns. We conclude, however, that assets in a defendant’s possession may be restrained in the way they were here based on a finding of probable cause to believe that the assets are forfeitable.
We have previously permitted the Government to seize property based on a finding of probable cause to believe that the property will ultimately be proved forfeitable. See, e. g., United States v. $8,850, 461 U. S. 555 (1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974). Here, where respondent was not ousted from his property, but merely restrained from disposing of it, the governmental intrusion was even less severe than those permitted by our prior decisions.
Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent’s possession, based on a finding of probable cause, when we have held that (under appropriate circumstances), the Government may restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense. See United States v. Salerno, 481 U. S. 739 (1987). Given the gravity of the offenses charged in the indictment, respondent himself could have been subjected to pretrial restraint if deemed necessary to “reasonably assure [his] appearance [at trial] and the safety of... the community,” 18 U. S. C. § 3142(e) (1982 ed., Supp. V); we find no constitutional infirmity in § 853(e)’s authorization of a similar restraint on respondent’s property to protect its “appearance” at trial and protect the community’s interest in full recovery of any ill-gotten gains.
Respondent contends that both the nature of the Government’s property right in forfeitable assets, and the nature of the use to which he would have put these assets (i. e., retaining an attorney), require some departure from our established rule of permitting pretrial restraint of assets based on probable cause. We disagree. In Caplin & Drysdale, we conclude that a weighing of these very interests suggests that the Government may — without offending the Fifth or Sixth Amendment — obtain forfeiture of property that a defendant might have wished to use to pay his attorney. Post, p. 617. Given this holding, we find that a pretrial restraining order does not “arbitrarily” interfere with a defendant’s “fair opportunity” to retain counsel. Cf. Powell v. Alabama, 287 U. S. 45, 69, 53 (1932). Put another way: if the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.
IV
For the reasons given above, the judgment of the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The CFA added or amended forfeiture provisions for two classes of violations under federal law, racketeering offenses and CCE offenses, see 98 Stat. 2040-2053, as amended. The CCE forfeiture statute at issue here, now provides:
“§ 853. Criminal forfeitures
“(a) Property subject to
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_const2
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
SHARPE v. COMMONWEALTH OF KENTUCKY.
No. 8909.
Circuit Court of Appeals, Sixth Circuit.
June 4, 1943.
Appellant not represented by counsel.
W. Owen Keller, Asst. Atty. Gen. of Ky. (Hubert Meredith, Atty. Gen. of Ky., and W. Owen Keller, Asst. Atty. Gen. of Ky., on the brief), for appellee.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
SIMONS, Circuit Judge.
Upon remand of the above cause for further proceedings in pursuance of the memorandum opinion of the Supreme Court in Sharpe v. Buchanan, 317 U.S. 238, 63 S.Ct. 245, 87 L.Ed. -, it becomes necessary to consider the problem upon the original record and the briefs and argument of counsel, since no supplemental record or briefs have been filed and no additional argument submitted when the cause was set for rehearing.
The appellant is serving a life sentence in a Kentucky penitentiary, by reason of a judgment of the Fayette Circuit Court at Lexington, responding to a jury verdict of guilty on the charge of murder. He filed in the court below a petition for a writ of habeas corpus alleging his conviction in the state court to be in violation of rights preserved by the Fifth and Fourteenth Amendments, because it was obtained by the Commonwealth on perjured evidence and an extorted confession, and because denied relief therefrom in the Kentucky courts, when newly discovered evidence showed the killing for which he was tried to have been done by another. The District Judge to whom the petition was addressed went at great length into the circumstances upon which it was based, but made no findings of fact upon conflicting testimony because he was of the view that he had no power to entertain the petition when remedies available to the petitioner under the law of the Commonwealth of Kentucky were not yet exhausted. On appeal we agreed. Sharpe v. Buchanan, 6 Cir., 121 F.2d 448. We there observed that the appellant, not having sought in the state courts a writ of habeas corpus challenging the validity of his trial and sentence, a writ would not lie to attack' the state judgment unless it be shown that corrective judicial process was not there available, upon the authority of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. No such showing being made, we affirmed the judgment.
Subsequently, upon a petition for rehearing, it was represented to us that an application for habeas corpus had been filed in the state court after we had rendered judgment, but it also appearing that an appeal from an adverse decision thereon was still pending in the Kentucky Court of Appeals, we denied the rehearing petition on the ground that we could not assume that the Kentucky Court would decide the appeal adversely to the petitioner. Certiorari to the Supreme Court of the United States was then sought. While the petition therefor was pending the Kentucky Court of Appeals affirmed the state court’s order denying habeas corpus, Sharpe v. Commonwealth, 292 Ky. 86, 165 S.W.2d 993. Upon that decision being certified or called to its attention, the Supreme Court concluded that the obstacle to a consideration of the merits of the petitioner’s application which we had encountered, was now removed. It therefore vacated our judgment and remanded the case to us for such further proceedings as we may deem appropriate.
The history of the case is reviewed in the careful opinion of the District Court, Ex parte Sharpe, 36 F.Supp. 386. It is necessary to recite the more salient facts therein appearing. On December 12, 1937, one Richard Mutran was murdered in Lexington, Kentucky. On April 12, 1938, the appellant was indicted by a grand jury on a charge ofi committing the murder, pleaded not guilty, and upon trial the jury returned a verdict of guilty, fixing the petitioner’s punishment at life imprisonment. No appeal was taken from the verdict and judgment. Two years later petitioner applied for a writ of coram nobis in the Fayette Circuit Court. From a ruling denying the petition an appeal was taken to the Kentucky Court of Appeals which affirmed the judgment, Sharpe v. Com., 284 Ky. 88, 143 S.W.2d 857. A petition to the governor of Kentucky for pardon was thereafter denied. The petition for writ of habeas corpus to the United States District Court for the Western District of Kentucky followed.
In the petition it is alleged that the appellant is not guilty of the crime of which he is convicted; that the Commonwealth had introduced in evidence at the trial a confession obtained by coercion, beating, threats, intimidation, starvation, and influence of drugs; that the petitioner »ad repudiated the confession before the trial; that the Commonwealth had introduced against him perjured evidence, and that subsequent to his conviction, and while in confinement, one Patrick Stevens, a fellow prisoner, had confessed that he and not the appellant had killed Mutran, which newly discovered evidence was not known to the appellant and not available to him at the time of trial.
The District Judge, upon a painstaking exploration into controlling authority, arrived at the conclusion that he could not issue the writ at the prayer of a person held under a state commitment unless recourse had first been had to whatever judicial remedies the state afforded. He relied upon Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748; Mooney v. Holohan, supra, and a number of cases in the Circuit Courts of Appeal. It was also his conclusion that even were state court remedies exhausted, a lower Federal Court should not issue the writ but the petitioner should be required to have the state court judgment reviewed, through proper proceedings, by the Supreme Court of the United States. This was in reliance upon Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. In respect to errors at the trial, it was his conclusion that the writ of habeas corpus could not be used as a writ of error to review the validity of the state court judgment where the defendant voluntarily had elected not to have the proceedings reviewed by the state court of last resort. On the question of newly discovered evidence he recognized and applied the provisions of the Criminal Code of Kentucky, § 271(6), § 273, which require that an application for new trial must be made at the same term at which the verdict is rendered, and that this had been held to apply even though the defendant did not know of the existence of such evidence until the term had expired, Wellington v. Commonwealth, 159 Ky. 462, 167 S.W. 427; Greer v. Commonwealth, 165 Ky. 715, 178 S.W. 1027.
We assume that the decision of the Supreme Court in Sharpe v. Buchanan, Warden, supra, implies no error in the court below in refusing to entertain the petition while state court remedies were still available to the petitioner, nor in our affirmance on that ground. We must also assume, by reason of the remand, that no obstacle to a consideration of the merits of the petitioner’s application appears in his failure to take an appeal from the court of last resort of Kentucky which affirmed the denial of his petition in the state court for writ of habeas corpus. This assumption is supported by the language of Mooney v. Holohan, supra [294 U.S. 103, 55 S.Ct. 343, 79 L.Ed. 791, 98 A.L.R. 406], where it was said that before a prisoner applies to the Federal Courts for habeas corpus “recourse should be had to whatever judicial remedy afforded by the state may still remain open,” and this notwithstanding the decision in Urquhart v. Brown, supra, where it was held that the petitioner should have appealed from the denial of his petition by the State Supreme Court to the Supreme Court of the United States, and that in Markuson v. Boucher, supra, where it was held to be immaterial that a defendant was too poor to appeal to the United States Supreme Court. When the memorandum opinion in the instant case was announced, the time permitted for appeal from the judgment of the Kentucky Court of Appeals, as provided by § 350, 28 U.S.C.A., had not yet run. Had such appeal been the only course available by which to question the validity of the judgment, it may be concluded that the cause would not have been remanded to us for further proceedings. Moreover, the court has, on occasion, been careful to assume that a Federal Court may issue a writ of habeas corpus to inquire into the cause of detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, if such writ is issued in the exercise of a sound discretion where exceptional circumstances of peculiar urgency are shown to exist, United States v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 70 L.Ed. 138. Although the court has never catalogued such circumstances, we found them to exist in Jones v. Kentucky, 6 Cir., 97 F.2d 335, where (1) the sentence was death, (2) the defendant had not been given a reasonable opportunity to prepare for trial, and (3) the Commonwealth conceded belatedly, though not too late, that its material evidence was perjured.
With these authorities in mind we have carefully reviewed the record in the instant case to ascertain whether a case is presented that permits intervention by a Federal Court to set aside a state court judgment already reviewed upon a similar petition by the court of last resort of the Commonwealth of Kentucky. Viewing the status of the petitioner as it then was under the law, the court below considered it unnecessary to make findings upon controverted evidence and made none, except to point out in its opinion that the allegations of the petition that the appellant’s conviction had been secured through perjured testimony, were general, specifying no particular witness involved, and were entirely unsupported by evidence. There remain, however, allegations that the verdict was a nullity because procured by an extorted confession, and allegations of newly discovered evidence purporting to establish the appellant’s innocence.
Upon the first point it must now be assumed, in the light of the recent cases of Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. —, and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. —, decided by the Supreme Court on March 1, 1943, that if such duress as is here charged were, in the view of an appellate court, established in respect to a confession submitted at a trial in any court of the United States, notwithstanding findings by both trial court and jury that the confession was voluntary, a conviction based thereon would be set aside. This result would follow without consideration of constitutional validity but in the exercise by appellate courts of judicial supervision of administration of criminal justice. It was recognized, however, in the McNabb case, áiat in review of state action expressing the notion of the state as to what will best further its own security in the administration of criminal justice, appropriate respect must be paid to the deliberative judgment of the state in so basic an exercise of its jurisdiction. It becomes necessary, therefore, to inquire whether evidence that the appellant was convicted upon a forced confession sustains allegations in that respect. The issue as to the voluntary character of the confession was submitted to a jury. Its verdict, under competent instruction, must, except in the most unusual case, be taken to be as the courts of Kentucky would treat it, final and conclusive upon the subject. We go no further than to say that evidence submitted at the trial or later discovered, that would warrant a District Judge in overriding a state court judgment in respect to the voluntary character of a confession, must needs be so clear and convincing as to leave no reasonable doubt in the mind of the court that the petitioner was convicted in denial of his constitutional immunity from self-incrimination. The court below received the evidence upon this controverted fact and observed the demeanor of witnesses. We should have its findings upon this disputed issue.
The same is true of the alleged confession of Stevens, that he, and not the appellant, committed the murder. Stevens has repudiated his confession. He explained that it was procured upon promise by the appellant of monetary reward and aid in obtaining a pardon. There is a suggestion, however, that Stevens’ repudiation itself may have been induced by threat or intimidation. The court which saw and heard the witnesses had advantage superior to ours for ascertaining the truth. We should, upon this controverted issue, likewise have its findings.
There remains the final question as to whether the court is precluded by the time limitation of the Kentucky Code upon motions for new trial based upon newly discovered evidence from considering the validity of the state court judgment. The question involved, upon petition for writ of habeas corpus, is whether the petitioner’s constitutional rights have been invaded. We think inquiry in that respect may not be foreclosed by local technical limitations upon motions for new trial. They are basic rights under fundamental and statutory Federal law. As we said in Jones v. Kentucky [97 F.2d 338], where constitutional rights were asserted, “the appellant is not to be sacrificed upon the altar of a formal legalism too literally applied.”
Reversed and remanded for further proceedings consistent herewith.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
TRI STATE MAINTENANCE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 21655.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 10, 1968.
Decided Dec. 18, 1968.
Mr. Ross O’Donoghue, Washington, D. C., for petitioner. Mr. George A. Fisher, Washington, D. C., also entered an appearance for petitioner.
Mr. Robert Lieber, Attorney, National Labor Relations Board, of the bar of the Supreme Court of California, pro hac vice, by special leave of court, for respondent. Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Michael N. Sohn, Attorney, National Labor Relations Board, were on the brief for respondent. Mr. Allen Berk, Attorney, National Labor Relations Board, also entered an appearance for respondent.
Before Burger, Wright and Tamm, Circuit Judges.
TAMM, Circuit Judge:
This case comes before us on a petition to review and set aside a Decision and Order of the National Labor Relations Board (hereinafter “Board’) (167 N.L.R.B. No. 140). After full consideration of all the pleadings involved we conclude that the Board’s Decision and Order must be affirmed only insofar as it is consistent with the dictates of this opinion and that it must be disregarded insofar as it bases its Order upon an invalid and untenable conclusion of law. (Conclusion of Law #3, Board’s Decision at 9.)
Since the dispute in this case is largely factual the facts and circumstances involved will be set out in detail. On May 17, 1966, petitioner was awarded a contract with the General Services Administration (hereinafter “GSA”) for the maintenance service of the Veterans Administration Building in the District of Columbia (Vermont Avenue and H Street, N. W.). This was a one-year contract, commencing on June 1, 1966. From June 1, 1965, until May 31, 1966, this particular maintenance contract was performed by the Frugal Company (hereinafter “Frugal”), a sole proprietorship (Tr. 15). During this period the Government Service Employees Union, Local 536, affiliated with Building Service Employees’ Union, AFL-CIO (hereinafter “Union”) successfully organized Frugal’s maintenance employees at this location. On March 28, 1966, Frugal and the Union signed a collective bargaining agreement which included a union-shop clause requiring union membership after thirty days of employment. As a result, on May 31, 1966, all of Frugal’s employees were members of the Union (Board’s Decision at 4).
The GSA had become disenchanted with the quality of Frugal’s cleaning operation. (Tr. 188, 204-5, 209, 330-31, 336.) Petitioner was told that Frugal, true to its name, was employing too small a work force and that it had let the building itself lapse into quite poor condition (Brief for Petitioner at 3; Tr. 37-38, 267, 274, 276, 285, 296-7, 331). In addition our petitioner was informed that it would probably need the use of a larger work force than Frugal had been employing.
Thus, between May 17, 1966, and June 1,1966, petitioner needed to hire approximately seventy employees. The GSA suggested that it was “industry custom and practice” for the incoming contractor to hire the employees of the outgoing contractor as a group. Tri State, however, decided that it would require individual applications from each of Frugal’s employees who wished to continue working at the Veterans Administration Building. Petitioner then selected one Richard Turner, the very man that GSA felt was largely responsible for the poor condition of the building (Tr. 209, 296-97, 336), to distribute applications throughout the building. There is a great deal of conflict in the testimony adduced at the administrative hearing as to the availability and access of these applications (Tr. 47, 77, 169-70, 219, 245). The Board concluded that Tri State purposely limited their availability in an attempt to hire less than a majority of Frugal’s employees and thus avoid having to deal with the Union (Board’s Decision at 5, 6.). The end result, after a series of correspondence between the Union and the respondent, was that on June 1, 1966, respondent had hired only twenty-three of Frugal’s forty or more employees. More specifically, on the afternoon of June 1, 1966, mass confusion reigned at the Veterans Administration Building. The Frugal employees set up picket lines and several Frugal employees tried to go to work and were told to wait for interviews (Tr. 102-03, 156, 170). The Union then filed a charge with the Board and a complaint was issued on August 31, 1966, alleging violation of Section 8(a) (1) and (3) of the Act. On November 3, 1966, the trial examiner allowed the complaint to be amended to allege that Tri State also violated Section 8(a) (5) of the Act. On December 19, 1966, the trial examiner issued his decision which found that respondent had violated Section 8(a) (5) but that it had not violated Section 8(a) (1) and (3). Subsequent thereto the Board adopted the examiner’s findings of fact but concluded that the respondent did violate Section 8(a) (1) and (3). The Board refused to reach the question of whether Section 8(a) (5) was violated since it was largely moot and unnecessary for the Board’s determination (Board’s Decision at 7, 8). Thus, as its remedy the Board ordered backpay from June 1, 1966, until August 17, 1966, for all Frugal employees who occupied such status on May 31, 1966, and who were not hired by respondent on June 1, 1966 (Board’s Order at 8). It is from this Decision and Order that petitioner now seeks relief.
I
We feel that the Board bottomed its decision on two separate and distinct bases. Thus, the Board ruled that
[b]y refusing to hire employees of the Frugal Company as a group, Respondent (Tri State) committed an unfair labor practice within the meaning of Section 8(a) (3) and (1) of the Act. * * * (Emphasis added.)
In the long history of labor law in this jurisdiction there simply is no authority which would require a maintenance corporation which contracts to service a building for a one year period to hire “en masse” the entire work force employed by the corporation or sole proprietor which or who had contracted to service the building for the previous one year period. See Amalgamated Clothing Workers of America v. NLRB, 112 U.S.App.D.C. 252, 302 F.2d 186 (1962) ; Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575 (3rd Cir. 1960), cert. denied, 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365 (1961) ; NLRB v. New England Tank Industries, Inc., 302 F.2d 273 (1st Cir.), cert. denied, 371 U.S. 875, 83 S.Ct. 147, 9 L.Ed.2d 114 (1962). Here, Tri State had no privity of contract with Frugal or Frugal’s employees and it was not a “successor employer” that bought out the business of another. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) ; Perma Vinyl Corp., 65 L.R.R.M. 1168 (NLRB, May 27, 1967). In fact, GSA expressed dissatisfaction at the work being done by the very people the Board would require petitioner to hire as a group (Tr. 272, 297). Tri State was clearly free to require individual applications which would seem almost essential for their bookkeeping process. It should be noted also that the “industry custom” of hiring imposes no binding obligation on petitioner. Moreover, the Board retreats from this proposition in the last and summation paragraph in its brief before this court (Brief for Respondent at 15). To the extent that the National Labor Relations Board bases its Decision and Order on the proposition that a successor contractor must hire “en masse” or “as a group” the entire work force of its predecessor contractor, it must be disregarded.
II
The second ground for the Board’s Decision is a finding that it was Tri State’s “intent not to hire most of the Frugal employees because of their Union affiliation.” Thus, the Board ordered Tri State to cease and desist from
[djiscouraging membership in Government Service Employees Union, Local 536 * * * by refusing to employ any applicant for employment * * * because of membership in, activities for, or sympathies with any such labor organization. * * *
It is well settled that Frugal’s employees were entitled to be considered for employment with Tri State on a non-discriminatory basis. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) ; K. B. & J. Young’s Super Markets, Inc. v. NLRB, 377 F.2d 463 (9th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967). It is thus clear that petitioner did violate the Act if it, as the Board found it did, refused employment to Frugal’s employees because of their union membership. It is with reference to this allegation that the record of the administrative hearing (as reproduced in the joint appendix) is not completely comprehensive. It is replete with incomplete testimony of the witnesses. Nevertheless, our examination of this record reveals that the Board’s finding, id est, that appellant refused employment to former Frugal employees because of their union membership, is supported by substantial evidence. Thus, we are bound by this determination even though we might have, were we permitted a de novo review, found a different result.
Upon close and exhaustive inspection of the record below we learn that considerable testimony was adduced showing that many Frugal employees were unable to obtain applications upon request (Tr. 169-70, 245). The record shows that Tri State expressed anti-union animus several times during the contract negotiations (Tr. 315-16, 326-27). There was testimony revealing that Mr. Turner told many Frugal employees that only twenty-two would be retained and that Tri State did not want the Union there (Tr. 98, 99). There was testimony alleging that one employee was refused an application because of her union affiliation (Tr. 90). The testimony showed that Mr. Steube, a Tri State supervisor, told several Frugal employees that Tri State would pay union wages but didn’t want any union there (Tr. 107, 160, 221, 223). There was testimony that all the allegedly valuable day-time employees were hired quickly but that the much more numerous and less valuable nighttime employees found that there was a dearth of both applications and information about how to apply for employment with Tri State (Tr. 47-49, 138). The record shows also that several Union officers told the Frugal employees that they would be fired or paid less by Tri State (Tr. 113-14, 346). The Board weighed all this conflicting evidence and we feel that its conclusion is supported by substantial evidence in the record. This portion of the Board’s Decision will not be disturbed.
We conclude therefore that the Frugal employees described in the Board’s Order are entitled to back pay and it shall be awarded. The Board’s Order as here modified is affirmed insofar as it is based upon the holding that our petitioner discriminated against the Frugal employees in its hiring process because of their union affiliation. We reject the Board’s conclusion insofar as it requires that Tri State hire the Frugal employees as a growp. The Board’s Order is therefore
Affirmed as modified.
. The record reveals that Frugal’s work force had dwindled to an average of between thirty-eight and forty-eight in the final few months of their contract (Tr. 331-32).
. The record reflects much dispute as to exactly what occurred at the Veterans Administration Building on June 1, 1966 (Tr. 101-03, 156-57, 169-71, 221-23, 247).
. 29 U.S.C. § 158(a) (1), (3) (1964), which reads in pertinent part:
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title * * * (3) by discrimination in regard to hire or tenure of employment * * * to * * * discourage membership in any labor organization * * *.
. 29 U.S.C. § 158(a) (5) (1964), which reads in pertinent part:
(a) It shall be an unfair labor practice for an employer—
(5) to refuse to bargain collectively with the representatives of his employees * * *.
. The Board reversed the trial examiner as to the testimony about Mr. Turner. The Board specifically found that Mr. Turner was an agent of Tri State in his activities in the Veterans Administration Building. Board’s Decision at 4, 5. This court notes in passing the lack of explanation in the record below as to why Mr. Turner did not testify at the hearing.
. Tri State, by letter, offered all former Frugal employees opportunity for employment on August 17, 1966. The Board held that this offer cured its violation of the Act as of that date. Board’s Decision at 8, 9.
. Board’s Decision at 9.
. Id. at 3.
. Id. at 9, 10.
. See, e. g., pages 22, 25-26, 28-29 missing out of Mr. Ford’s testimony; pages 46, 48 out of Mr. Donahue’s testimony; pages; 119-121, 125 out of Mrs. Wallace’s testimony; pages 127-129, 137 out of Mr. Baker’s testimony; pages 171-173 out of Mrs. Moten’s testimony; pages 319-321, 324-325 out of Mr. Zecher’s testimony; pages 242, 248-249, 255 out of Mr. Adams’ testimony; pages 349-350 out of Mr. Wilhelm’s testimony; pages 208, 214 out of Mr. Lancaster’s testimony. In addition, an index reflecting the beginning and end of each witness’ testimony in the record was nonexistent in the joint appendix presented to us.
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_casetyp2_geniss
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is First Amendment - speech and other expression - association. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
COMMITTEE IN SOLIDARITY WITH THE PEOPLE OF EL SALVADOR (CISPES), et al., Appellants, v. William F. SESSIONS, Director, Federal Bureau of Investigation, et al., Appellees.
No. 90-5179.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 20, 1991.
Decided April 12, 1991.
Alan H. Levine, with whom Melvin L. Wulf, Michael Ratner, New York City, and James Klimaski were on the brief, Washington, D.C., for appellants.
R. Joseph Sher, Sr. Trial Counsel, Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, U.S. Atty., were on the brief, Washington, D.C., for appellees.
Before SILBERMAN, WILLIAMS, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
For more than two years, from 1983 to 1985, the Federal Bureau of Investigation investigated the Committee in Solidarity with the People of El Salvador (CISPES), several of its members, and individuals and groups associated with the organization. An informant, later found to be untrustworthy, had alleged that CISPES was involved in terrorist activities. No links to terrorism were ever uncovered. After determining that it had been acting on unreliable information, the FBI terminated the inquiry. By then the Bureau had collected a considerable amount of data about CISPES and its members.
In testimony before congressional committees, the Director of the FBI, William F. Sessions, said the investigation should never have been initiated, but denied that the Bureau had acted illegally in conducting the inquiry. Director Sessions notified the committees that several agents had been disciplined and that internal procedures had been revised to insure that such errors would not recur.
Thereafter, in 1988, CISPES, four other organizations, and eight individuals brought this action against Director Sessions and the FBI. The complaint, as amended, alleged that the FBI conducted the investigation for the purpose of deterring plaintiffs from exercising their First Amendment right to protest the government’s policy in Central America, that the investigation had this effect, that CISPES’s membership declined during the investigation, and that plaintiffs were suffering irreparable harm as a result of the FBI’s possession of information about them and its dissemination of such information to others. Plaintiffs claimed that defendants were violating their First Amendment rights to freedom of speech and association, as well as the Privacy Act of 1974, 5 U.S.C. § 552a. They sought a declaratory judgment and a “mandatory injunction” requiring the FBI to collect all FBI files and any “other federal agency files” relating to the CISPES investigation and to deposit these files in the National Archives “upon terms and conditions to be determined by the Court.”
After the district court denied plaintiffs’ motion for a preliminary injunction (705 F.Supp. 25 (D.D.C.1989)), defendants filed a motion to dismiss the case for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). While the motion was pending, the FBI entered into a written agreement with the National Archives transferring all of its CISPES files, including those held by its field offices and those resulting from “spin-off” investigations, to the Archives. The district court took note of the agreement and dismissed the complaint on the grounds that the case was moot and that plaintiffs lacked standing. 738 F.Supp. 544, 547-48 (D.D.C.1990).
The first question on appeal is whether, in light of the FBI’s transfer of its files to the Archives, this continued to be a “case or controversy” under Article III of the Constitution. Plaintiffs’ challenge to the constitutionality of the FBI’s investigation could not alone satisfy the requirement. The investigation ended years ago. To pass judgment on its legality would be to render an advisory opinion unless there were current consequences. In injunction suits, plaintiffs usually must establish that the allegedly illegal actions of the past are causing or threatening to cause them present injuries. E.g., O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974); cf. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Current or future harm serves to keep the controversy alive. If the possibility of continuing injury disappears while the lawsuit is pending, the complaint ordinarily should be dismissed as moot.
We shall assume the complaint presented a live controversy when plaintiffs filed it in 1988. But the alleged harm resulting from the FBI’s possession of the information necessarily ceased when the FBI relinquished the files. It is of no consequence that the FBI, rather than destroying the files, turned them over to the Archives. That is the relief plaintiffs requested. Their complaint sought an order directing the FBI to deposit its CISPES files with the Archives under such “terms and conditions” as the court saw fit. Although the court did not impose the terms governing the transfer, the court did review the agreement and indicated that it would have granted no further relief if plaintiffs had prevailed on the merits.
It is therefore appropriate to presume that the agreement provided a sufficient remedy for the harm plaintiffs alleged. However, because the FBI acted voluntarily, without judicial compulsion, mootness also depended on there being little likelihood that the agreement would be undone. United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); see United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n. 10, 102 S.Ct. 1070, 1074-75 & n. 10, 71 L.Ed.2d 152 (1982). Assessing that probability was “a matter for the trial judge,” Concentrated Phosphate Export Ass’n, 393 U.S. at 204, 89 S.Ct. at 364, who determined that there was no basis for doubting that the FBI would honor the agreement and that all CISPES files, including those in the FBI’s computer banks, were covered. Plaintiffs object that the court relied on representations made by the FBI and its Director to the court (and to Congress), rather than on facts established in an adversary proceeding. But “it has been the settled practice” to accept such representations in determining whether a case presents a live controversy. DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974); Ehlert v. United States, 402 U.S. 99, 107, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). The district court thus properly found this aspect of the ease to be moot.
This still leaves plaintiffs’ claim about information in the hands of other federal agencies, information plaintiffs wanted the FBI to retrieve and turn over to the Archives pursuant to court order. The district court dismissed this claim on the defendants’ Rule 12(b)(1) motion, citing “mootness” and lack of standing, both of which it regarded as jurisdictional. Plaintiffs argue that the court’s ruling, a portion of which is quoted in the margin, actually was on the merits. They say this makes a procedural difference because a dismissal for failure to state a claim is improper if matters outside the pleadings “are presented to and not excluded by” the court. Rule 12(b), Fed.R.Civ.P. In that event, Rule 12(b) requires the court to treat the proceeding as one for summary judgment under Rule 56 and to give the parties an opportunity to present opposing material. Plaintiffs contend they were deprived of this opportunity.
Even if plaintiffs are right that the court, in effect, dismissed their claim on the merits — that is, pursuant to Rule 12(b)(6)— their conclusion would not follow. The only materials outside the pleadings presented by the defendants were the agreement between the FBI and the Archives and a letter from Director Sessions to Senator Boren announcing the decision to transfer the records. These items had nothing to do with files in the possession of other agencies, which is the concern of this portion of plaintiffs’ complaint. Rule 12(b) therefore did not require the court to convert this into a Rule 56 summary judgment proceeding. Once we pass that point, it makes little difference whether the court’s dismissal of this claim is viewed as resting on lack of jurisdiction, the merits or a combination of the two. See Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1239 (D.C.Cir.1978); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1528-29 (1st Cir.1983). Equitable considerations and justiciability often tend to merge as the district court decides “whether the controversy is sufficiently live and concrete to be adjudicated and whether it is an appropriate case for equitable relief.” American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153, 161, 109 S.Ct. 1693, 1698, 104 L.Ed.2d 139 (1989) (per curiam).
Procedural considerations aside, we think the district court reached the correct result. Plaintiffs’ supposed continuing injury was far too speculative to support the sort of extraordinary injunction they sought. They alleged that if other government agencies kept the information the FBI had supplied to them, the individual plaintiffs would have less of a chance to obtain government employment. Yet no plaintiff expressed any desire to engage in government employment. The district court therefore found the allegation of continuing harm far-fetched and we agree. O’Shea v. Littleton, 414 U.S. at 497-99, 94 S.Ct. at 676-78. “Injunctions ... will not issue to prevent injuries neither extant nor presently threatened, but only merely ‘feared.’ ” Exxon Corp. v. FTC, 589 F.2d 582, 594 (D.C.Cir.1978) (quoting Connecticut v. Massachusetts, 282 U.S. 660, 51 S.Ct. 286, 75 L.Ed. 602 (1931)), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979); Newhouse v. Probert, 608 F.Supp. 978, 984 (W.D.Mich.1985).
Similar considerations warranted dismissal of this portion of the complaint under Rule 12(b)(6) for failure to state a claim upon which injunctive relief could be granted. Injunctions issue to prevent irreparable harm. Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985). When there appears to be no real harm to prevent, a court is justified in refusing to provide such relief. Moreover, whether the mandatory injunction plaintiffs sought would accomplish anything was itself speculative. Other federal agencies, not the FBI, controlled the records. An injunction compelling them to turn over their files would have been improper since they were not parties to the lawsuit. See Rule 65(d), Fed.R.Civ.P.; Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112, 89 S.Ct. 1562, 1570, 23 L.Ed.2d 129 (1969). The district court therefore properly dismissed this claim on the grounds that, “as a practical matter,” the FBI controls only files in its possession and that, in any event, plaintiffs’ asserted injury from the existence of these other files was too remote.
At oral argument, CISPES suggested that we should order the FBI to request (since it cannot compel) other agencies to return the relevant files. Yet the prospect of a court-ordered memorandum from the FBI asking a favor of other agencies seems an odd basis for launching a lawsuit. The chances that such “relief” would produce the ultimate result that CISPES seeks (transferral of all copies of the files to the Archives) is wholly speculative. At any rate, CISPES did not clearly argue for this relief in its appellate brief, so the issue is not properly before us. See Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
Affirmed.
. Plaintiffs sought to bring the suit as a class action on behalf of "178 individuals and organizations" but the class was never certified.
. Plaintiffs' claims under the Privacy Act were also rendered moot by the FBI’s disposal of the records in its possession, which is the maximum injunctive relief to which plaintiffs would be entitled under the Act. Reuber v. United States, 829 F.2d 133, 147 (D.C.Cir.1987); Metadure Corp. v. United States, 490 F.Supp. 1368, 1375 (S.D.N.Y.1980).
. As a practical matter, however, the defendants can only dispose of records over which they have custody or control. Information and records that the defendants have already disseminated, i.e., to other federal agencies or foreign governments, are beyond the disposal power of the defendants. Moreover, although other entities may have copies of the records, possession by these entities is not sufficiently related to plaintiffs’ asserted injury to establish an actual case or controversy.
738 F.Supp. at 546.
.There is no such constraint on the court when it is considering a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987).
Question: What is the second general issue in the case, other than First Amendment - speech and other expression - association?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
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.
La BUY, UNITED STATES DISTRICT JUDGE, v. HOWES LEATHER CO., INC., et al.
No. 27.
Argued October 17-18, 1956.
Decided January 14, 1957.
James A. Sprowl argued the cause for petitioner. With him on the brief was Edward R. Johnston.
Jack I. Levy argued the cause for respondents. On the brief were Mr. Levy for Howes Leather Co.,. Inc., and David' L. Dickson and John F. McClure for Montgomery Ward & Co., Inc., respondents.
Mr. Justice Clark
delivered the opinion of the Court.
These two consolidated cases present a question of the power of the Courts of Appeals to issue writs of mandamus to compel a District Judge to vacate his orders entered under Rule 53 (b) of the Federal Rules of Civil Procedure referring antitrust cases for trial before a master. The petitioner, a United States District Judge sitting in the Northern District of Illinois, contends that the Courts of Appeals have no such power and that, even if they did, these cases were not appropriate ones for its exercise. The Court of Appeals for the Seventh Circuit has decided unanimously that it has such power and, by a divided court, that the circumstances surrounding the references by the petitioner required it to issue the mandamus about which he complains. 226 F. 2d 703. The importance of the question in the administration of the Federal Rules of Civil Procedure, together with the uncertainty existing on the issue among the Courts of Appeals, led to our grant of a writ of certiorari. 350 U. S. 964. We conclude that the Court of Appeals properly issued the writs of mandamus.
History of the Litigation. — These petitions for mandamus, filed in the Court of Appeals, arose from two antitrust actions instituted in the District Court in 1950. Rohlfing involves 87 plaintiffs, all operators of independent retail shoe repair shops. The claim of these plaintiffs against the six named defendants — manufacturers, wholesalers, and retail mail order houses and chain operators — is identical. The claim asserted in the complaint is a conspiracy between the defendants "to monopolize and to attempt to monopolize” and fix the price of shoe repair supplies sold in interstate commerce in the Chicago area, in violation of the Sherman Act. The allegations also include a price discrimination charge under the Robinson-Patman Act. Shaffer involves six plaintiffs, all wholesalers of shoe repair supplies, and six defendants, including manufacturers and wholesalers of such supplies and a retail shoe shop chain operator. The allegations here also include charges of monopoly and price fixing under the Sherman Act and price discrimination in violation of the Robinson-Patman Act. Both complaints pray for injunctive relief, treble damages, and an accounting with respect to the discriminatory price differentials charged.
The record indicates that the cases had been burdensome to the petitioner. In Roklfing alone, 27 pages of the record are devoted to docket entries reflecting that petitioner had conducted many hearings on preliminary pleas and motions. The original complaint had been twice amended as a result of orders of the court in regard to misjoinders and severance; 14 defendants had been dismissed with prejudice; summary judgment hearings had resulted in a refusal to enter a judgment for some of the defendants on the pleadings; over 50 depositions had been taken; and hearings to compel testimony and require the production and inspection of records were held. It appears that several of the hearings were extended and included not only oral argument but submission of briefs, and resulted in the filing of opinions and memoranda by the petitioner. It is reasonable to conclude that much time would have been saved at the trial had petitioner heard the case because of his familiarity with the litigation.
The References to the Master. — The references to the master were made under the authority of Rule 53 (b) of the Federal Rules of Civil Procedure. The cases were called on February 23, 1955, on a motion to reset them for trial. Rohlfing was “No. 1 below the black line” on the trial list, which gave it a preferred setting. All parties were anxious for an early trial, but plaintiffs wished an adjournment until May. The petitioner announced that “it has taken a long time to get this case at issue. I remember hearing more motions, I think, in this case than any case I have ever sat on in this court.” The plaintiffs estimated that the trial would take six weeks, whereupon petitioner stated he did not know when he could try the case “if it is going to take this long.” He asked if the parties could agree “to have a Master hear” it. The parties ignored this query and at a conference in chambers the next day petitioner entered the orders of reference sua sponte. The orders declared that the court was “confronted with an extremely congested calendar” and that “exception [sic] conditions exist for this reason” requiring the references. The eases were referred to the master “to take evidence and to report the same to this Court, together with his findings of fact and conclusions of law.” It was further ordered in each case that “the Master shall commence the trial of this cause” on a certain date and continue with diligence, and that the parties supply security for costs. While the parties had deposited some $8,000 costs, the record discloses that all parties objected to the references and filed motions to vacate them. Upon petitioner’s refusal to vacate the references, these mandamus actions were filed in the Court of Appeals seeking the issuance of writs ordering petitioner to do so. These applications were grounded on 28 U. S. C. § 1651 (a), the All Writs Act. In his answer to the show cause orders issued by the Court of Appeals, petitioner amplified the reasons for the references, stating “that the cases were very complicated and complex, that they would take considerable time to try,” and that his “calendar was congested.” Declaring that the references amounted to “a refusal on his [petitioner’s] part, as a judge, to try the causes in due course,” the Court of Appeals concluded that “in view of the extraordinary nature of these causes” the references must be vacated “if we find that the orders were beyond the court’s power under the pertinent rule.” 226 F. 2d, at 705, 706. And, it being so found, the writs issued under the authority of the All Writs Act. It is not disputed that the same principles and considerations as to the propriety of the issuance of the writs apply equally to the two cases.
The Power of the Courts of Appeals. — Petitioner contends that the power of the Courts of Appeals does not extend to the issuance of writs of mandamus to review interlocutory orders except in those cases where the review of the case on appeal after final judgment would be frustrated. Asserting that the orders of reference were in exercise of his jurisdiction under Rule 53 (b), petitioner urges that such action can be reviewed only on appeal and not by writ of mandamus, since by congressional enactment appellate review of a District Court’s orders may be had only after a final judgment. The question of naked power has long been settled by this Court. As late as Roche v. Evaporated Milk Association, 319 U. S. 21 (1943), Mr. Chief Justice Stone reviewed the decisions and, in considering the power of Courts of Appeals to issue writs of mandamus, the Court held that “the common law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court.” Id., at 25. The recodification of the All Writs Act in 1948, which consolidated old §§ 342 and 377 into the present § 1651 (a), did not affect the power of the Courts of Appeals to issue writs of mandamus in aid of jurisdiction. See Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 382-383 (1953). Since the Court of Appeals could at some stage of the antitrust proceedings entertain appeals in these cases, it has power in proper circumstances, as here, to issue writs of mandamus reaching them. Roche, supra, at 25, and cases there cited. This is not to say that the conclusion we reach on the facts of this case is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a means of reviewing interlocutory orders. We pass on, then, to the only real question involved, i. e., whether the exercise of the power by the Court of Appeals was proper in the cases now before us.
The Discretionary Use of the Writs. — It appears from the docket entries to which we heretofore referred that the petitioner was well informed as to the nature of the antitrust litigation, the pleadings of the parties, and the gist of the plaintiffs’ claims. He was well aware of the theory of the defense and much of the proof which necessarily was outlined in the various requests for discovery, admissions, interrogatories, and depositions. He heard arguments on motions to dismiss, to compel testimony on depositions, and for summary judgment. In fact, petitioner’s knowledge of the cases at the time of the references, together with his long experience in the antitrust field, points to the conclusion that he could, dispose of the litigation with greater dispatch and less effort than anyone else. Nevertheless, he referred both suits to a master on the general issue. Furthermore, neither the existence of the alleged conspiracy nor the question of liability vel non had been determined in either case. These issues, as well as the damages, if any, and the question concerning the issuance of an injunction, were likewise included in the references. Under all of the circumstances, we believe the Court of Appeals was justified in finding the orders of reference were an abuse of the petitioner’s power under Rule 53 (b). They amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.
The use of masters is “to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause,” Ex parte Peterson, 253 U. S. 300, 312 (1920), and not to displace the court. The exceptional circumstances here warrant the use of the extraordinary remedy of mandamus. See Maryland v. Soper, 270 U. S. 9, 30 (1926). As this Court pointed out in Los Angeles Brush Corp. v. James, 272 U. S. 701, 706 (1927): “. . . [W]here the subject concerns the enforcement of the . . . [r]ules which by law it is the duty of this Court to formulate and put in force,” mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. As was said there at page 707, were the Court “. . . to find that the rules have been practically nullified by a district judge . . . it would not hesitate to restrain [him]. . . .” The Los Angeles Brush Corp. case was cited as authority in 1940 for a per curiam opinion in McCullough v. Cosgrave, 309 U. S. 634, in which the Court summarily ordered vacated the reference of two patent cases to a master. The cases arose from the same District Court in which the Los Angeles Brush Corp. case originated and the grounds for the references largely followed that case. It is to be noted that the grounds there are much more inclusive than those set out here, alleging all of those claimed by the petitioner and, in addition, the prolonged illness of the regular judge and the fact that no other judge was available to try the cases. It appears to us a fortiori that these cases were improperly referred to a master.
It is claimed that recent opinions of this Court are to the contrary. Petitioner cites Bankers Life & Casualty Co. v. Holland, 346 U. S. 379 (1953), and Parr v. United States, 351 U. S. 513 (1956). The former case did not concern rules promulgated by this Court but, rather, an Act of Congress, the venue statute. Furthermore, there we pointed out that the “. . . All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or ‘usurpation of judicial power’ . . . .” 346 U. S., at 383. Certainly, as the Court of Appeals found here, there was a clear abuse of discretion. In the Parr case, the District Court had not exceeded or refused to exercise its functions. It dismissed an indictment because the Government had elected to prosecute Parr in another district under a new indictment. The effect of the holding was merely that the dismissal of the first indictment was not an abuse of the discretion vested in the trial judge.
It is also contended that the Seventh Circuit has erroneously construed the All Writs Act as “conferring on it a ‘roving commission’ to supervise interlocutory orders of the District Courts in advance of final decision.” Our examination of its opinions in this regard leads us to the conclusion that the Court of Appeals has exercised commendable self-restraint. It is true that mandamus should be resorted to only in extreme cases, since it places trial judges in the anomalous position of being litigants without counsel other than uncompensated volunteers. However, there is an end of patience and it clearly appears that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references “does not commend itself” and “. . . should seldom be made, and if at all only when unusual circumstances exist.” In re Irving-Austin Building Corp., 100 F. 2d 574, 577 (1938). Again, in 1942, it pointed out that the words “exception” and “exceptional” as used in the reference rule are not elastic terms with the trial court the sole judge of their elasticity. “Litigants are entitled to a trial by the court, in every suit, save where exceptional circumstances are shown.” Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F. 2d 809, 815. Still the Court of Appeals did not disturb the reference practice by reversal or mandamus until this case was decided in October 1955. Again, Chief Judge Duffy in Krinsley v. United Artists Corp., 235 F. 2d 253, 257 (1956), in which there was an affirmance of a case involving a reference, called attention to the fact that the practice of referring cases to masters was “. . . all too common in the Northern District of Illinois . . . .” The record does not show to what extent references are made by the full bench of the District Court in the Northern District; however, it does reveal that petitioner has referred 11 cases to masters in the past 6 years. But even “a little cloud may bring a flood’s downpour” if we approve the practice here indulged, particularly in the face of presently congested dockets, increased filings, and more extended trials. This is not to say that we are neither aware of nor fully appreciative of the unfortunate congestion of the court calendar in many of our District Courts. The use of procedural devices in the heavily congested districts has proven to be most helpful in reducing docket congestion. Illustrative of such techniques are provision for an assignment commissioner to handle the assignment of all cases; the assignment of judges to handle only motions, pleas, and pretrial proceedings; and separate calendars for civil and criminal trials in cases that have reached issue. We enumerate these merely as an example of the progress made in judicial administration through the use of enlightened procedural techniques. It goes without saying that they can be used effectively only where adaptable to the specific problems of a district. But, be that as it may, congestion in itself is not such an exceptional circumstance as to warrant a reference to a master. If such were the test, present congestion would make references the rule rather than the exception. Petitioner realizes this, for in addition to calendar congestion he alleges that- the cases referred had unusual complexity of issues of both fact and law. But most litigation in the antitrust field is complex. It does not follow that antitrust litigants are not entitled to a trial before a court. On the contrary, we believe that this is an impelling reason for trial before a regular, experienced trial judge rather than before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work. Nor does petitioner’s claim of the great length of time these trials will require offer exceptional grounds. The final ground asserted by petitioner was with reference to the voluminous accounting which would be necessary in the event the plaintiffs prevailed. We agree that the detailed accounting required in order to determine the damages suffered by each plaintiff might be referred to a master after the court has determined the over-all liability of defendants, provided the circumstances indicate that the use of the court’s time is not warranted in receiving the proof and making the tabulation.
We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here. Its judgment is therefore
Affirmed.
Rohlfing v. Cat’s Paw Rubber Co., No. 50 C 229, U. S. D. C. N. D. Ill., and Shaffer v. U. S. Rubber Co., No. 50 C 844, U. S. D. C. N. D. Ill.
The figures indicated refer to the number of parties at the time of the petition for mandamus. When the action was originally filed there were 87 plaintiffs and 25 defendants.
The figures indicated refer to the number of parties at the time of the petition for mandamus. When the action was originally filed there were 10 plaintiffs and 20 defendants.
Rule 53 (b) provides:
“(b) REFERENCE. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it.”
The fact that the master is an active practitioner would make the comment of Chief Justice Vanderbilt with regard to the effect of references appropriate here. In his work, Cases and Materials on Modern Procedure and Judicial Administration (1952), at pages 1240-1241, he states:
“There is one special cause of delay in getting cases on for trial that must be singled out for particular condemnation, the all-too-prevalent habit of sending matters to a reference. There is no more effective way of putting a case to sleep for an indefinite period than to permit it to go to a reference with a busy lawyer as referee. Only a drastic administrative rule, rigidly enforced, strictly limiting the matters in which a reference may be had and requiring weekly reports as to the progress of each reference will put to rout this inveterate enemy of dispatch in the trial of cases.”
“ (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
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_const1
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105
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
RURAL TELEPHONE COALITION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Puerto Rico Telephone Company, International Business Machines Corporation, National Association of Regulatory Utility Commissioners, New York Telephone Company, et al., North American Telecommunications Association, Municipality of Anchorage, d/b/a Anchorage Telephone Utility, American Telephone and Telegraph Company, MCI Telecommunications Corporation, State of Alaska, GTE Service Corporation, United Telephone System, Inc., Rochester Telephone Corporation, Ad Hoc Telecommunications Users Committee, United States Transmission Systems, Inc., National Data Corporation, Aeronautical Radio, Inc., Pacific Bell, et al., Bell Telephone Company of Pennsylvania, et al., Intervenors. MCI TELECOMMUNICATIONS CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Ad Hoc Telecommunications Users Committee, et al., Intervenors.
Nos. 84-1110, 84-1139, 85-1152.
United States Court of Appeals, District of Columbia Circuit.
Argued April 3, 1987.
Decided Feb. 5, 1988.
William J. Byrnes, with whom Michael H. Bader, Kenneth A. Cox, John M. Pelkey, John M. Scorce, and Ruth S. Baker-Battist, Washington, D.C., were on the brief, for MCI Communications, Inc., petitioner in Nos. 84-1139 & 85-1152, and intervenor in No. 84-1110. Theodore D. Kramer, Thomas R. Gibbon, and Robert Michelson, Washington, D.C., also entered appearances for petitioner.
Linda L. Oliver, Counsel, Federal Communications Commission (“FCC”), with whom Diane S. Killory, General Counsel, Daniel M. Armstrong, Associate General Counsel, John E. Ingle, Deputy Associate General Counsel, and Laurel R. Bergold, Counsel, FCC, and Catherine G. O’Sullivan and Andrea Limmer, Attys. U.S. Dept, of Justice, Washington, D.C., were on the brief, for respondents. Barry Grossman and Nancy C. Garrison, Attys., U.S. Dept, of Justice, and Bruce E. Fein, Counsel, FCC, Washington, D.C., also entered appearances for respondents.
Jules M. Perlberg, with whom C. John Buresh, Jonathan S. Hoak, Chicago, 111., and Robert B. Stechert, Basking Ridge, N.J., were on the brief, for intervenor American Tel. & Tel. Co. (“AT & T”) in all cases. Michael Boudin, Washington, D.C., Judith A. Maynes, New Haven, Conn., and Alfred A. Green, New York City, also entered appearances for AT & T.
David Cosson, Andrew G. Mulitz, and Margot Smiley Humphrey, Washington, D.C., were on the brief for petitioner Rural Telephone Coalition. Paul G. Daniel, Wilmington, Del., also entered an appearance for petitioner Rural Telephone Coalition.
Raymond F. Scully, Alan B. Sternstein, and Katherine I. Hall, Washington, D.C., were on the brief for intervenors Pacific Bell, et al., in all cases.
Thomas J. O’Reilly, Washington, D.C., was on the brief for intervenor U.S. Telephone Ass’n in Nos. 84-1139 & 85-1152.
Richard McKenna, James R. Hobson, and Gail L. Polivy, Washington, D.C., entered appearances for intervenor GTE Service Corp. in all cases.
Gary C. Tucker, Denver, Colo., Michael L. Glaser, and Francis E. Fletcher, Jr., Washington, D.C., entered appearances for intervenors Municipality of Anchorage, d/b/a Anchorage Telephone Utility, et al., in all cases.
Albert H. Kramer and Denise Bonn, Washington, D.C., entered appearances for intervenor North American Telecommunications Ass’n in all eases.
Joseph P. Markoski and Ann J. LaF-rance, Washington, D.C., entered appearances for intervenor National Data Corp. in Nos. 84-1110 & 84-1139.
Saul Fisher, Bedminster, N.J., and John B. Messenger, Boston, Mass., entered appearances for intervenors New York Telephone Co., et al., in Nos. 84-1110 & 84-1139.
Charles D. Gray, Genevieve Morelli and William Paul Rodgers, Jr., Washington, D.C., entered appearances for intervenor National Ass’n of Regulatory Utility Comm’rs in Nos. 84-1110 & 84-1139.
Carolyn C. Hill, Washington, D.C., entered an appearance for intervenor United Telephone Systems, Inc., in Nos. 84-1110 & 84-1139.
Charles A. Zielinski and A. Richard Metz-ger, Jr., Washington, D.C., entered appearances for intervenor Rochester Telephone Corp. in No. 84-1110.
W. Randolph Young, Washington, D.C., entered an appearance for intervenor State of Alaska in No. 84-1110.
Joseph M. Kittner, James S. Blaszak, and Timothy J. Cooney, Washington, D.C., entered appearances for intervenor Ad Hoe Telecommunications Users Committee in all cases.
J. Roger Wollenberg, William T. Lake, and Roger M. Witten, Washington, D.C., entered appearances for intervenor IBM Corp. in all cases.
James L. McHugh, Jr., Washington, D.C., entered an appearance for intervenor Puerto Rico Telephone Co. in No. 84-1110.
John A. Ligón, Grant S. Lewis, and John S. Kinzey, Washington, D.C., entered appearances for intervenor Aeronautical Radio, Inc. in all cases.
Daniel P. Behuniak entered an appearance for intervenors Bell Telephone Co. of Pennsylvania, et al, in all cases.
Thomas J. Reiman, Chicago, 111., and Alfred Winchell Whittaker, Washington, D.C., entered appearances for intervenors Ameritech Operating Companies, et al., in Nos. 84-1139 & 85-1152.
Mary Jo Manning, Washington, D.C., entered an appearance for intervenor ROLM Corp. in No. 84-1139.
William B. Gundling, Hartford, Conn., entered an appearance for intervenor Dept, of Public Utility Control of the State of Connecticut in No. 84-1139.
Joel B. Shifman, Charleston, W. Va., entered an appearance for intervenor Public Service Com’n of West Virginia in No. 84-1139.
Robert W. Barker and Robert B. McKen-na, Washington, D.C., entered appearances for intervenor Mountain States Tel. & Tel. Co., et al., in Nos. 84-1139 & 85-1152.
Theodore D. Frank, Washington, D.C., entered an appearance for intervenor Cen-tel Corp. in No. 84-1139.
Arthur H. Simms and Lawrence P. Keller, Washington, D.C., entered appearances for intervenor Western Union Telegraph Co. in No. 84-1139.
Kevin H. Cassidy, McLean, Va., Jeffrey Matsuura, Washington, D.C., William E. Willis, New York City, and Margaret K. Pfeiffer, Washington, D.C., entered appearances for intervenor Satellite Business Systems in No. 84-1139.
Edgar Mayfield, William C. Sullivan, Linda S. Legg, and Liam S. Coonan, St. Louis, Mo., entered appearances for intervenor Southwestern Bell Telephone Co. in No. 84-1139.
Herbert E. Marks, Ann J. LaFrance, and David A. Wormser, Washington, D.C., entered appearances for intervenor Association of Data Processing Service Organizations, Inc., in No. 85-1152.
Daniel A. Huber, Washington, D.C., entered an appearance for intervenor U.S. Telecom, Inc., in No. 85-1152.
Brenda L. Fox, Washington, D.C., entered an appearance for intervenor National Cable Television Ass’n in No. 85-1152.
Before MIKVA, BORK and BUCKLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
Petitioners challenge various aspects of two Federal Communications Commission orders relating to the allocation of local exchange costs between the interstate and intrastate regulatory jurisdictions. The challenged decisions are interim measures the Commission has taken as the communications industry continues to adjust to the dissolution of American Telephone and Telegraph Company’s Bell System. Their effect is to shift certain costs from intrastate to interstate telephone service, with the partial objective of avoiding large increases in local telephone rates and advancing the goal of universal telephone service. We affirm the orders.
I. Background
Great changes have visited the Nation’s telephone system in recent years. The typical interstate call nonetheless still traces a familiar path. It originates at a home or office, proceeds to the switches of a local exchange telephone company, is connected there to an interexchange carrier, crosses state boundaries, reaches a second local exchange, and is finally connected through to the receiving party. The capital plant of local exchange companies is therefore essential to the functioning of the interstate communications system we have today.
State regulatory agencies have jurisdiction to set rates for local and intrastate telephone service. As telephone rates are generally based on the cost of providing service, it is necessary to separate and allocate the costs of operating local exchanges among the intrastate and interstate jurisdictions before state and federal agencies, respectively, can set rates. See Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930); MCI Telecommunications Corp. v. FCC, 750 F.2d 135 (D.C.Cir.1984). Thus, separating costs between the two jurisdictions has the incidental effect of defining the rate base of telecommunications carriers.
This case concerns part of the Commission’s attempt to use its power to allocate costs between federal and state jurisdictions in order to cushion the transition to a competitive long-distance communications market. The conversion must be cushioned because during the period American Telephone and Telegraph Company (“AT & T”) was divesting itself of the Bell Operating Companies (“BOCs”), see United States v. AT & T, 552 F.Supp. 131 (D.D.C.1982), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983), the Commission determined that the Bell System had operated with wide disparities between the prices BOCs charged for local service and their operating costs.
Local company costs include certain “non-traffic sensitive” (“NTS”) costs. These do not vary with the volume of calling traffic. The capital plant from which they arise is the line from the customer’s premises to the local exchange company’s central office (the “subscriber loop”), related “customer premises equipment” (“CPE”) such as ordinary hand sets and customer wiring, and part of local exchange companies’ central office switching equipment.
After extensive studies in which it considered various options for eliminating the disparities between local company NTS costs and local customer bills, the Commission concluded that imposing “access charges” on subscribers to recover NTS costs would be the most economically efficient long-term solution. See MTS & WATS Market Structure, 93 F.C.C.2d 241 (1983) (“Access Charge Decision ”), recon., 97 F.C.C.2d 682 (1983), aff'd in principal part sub nom. National Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095 (D.C.Cir.1984), cert. denied, 469 U.S. 1227, 105 S.Ct. 1225, 84 L.Ed.2d 364 (1985) (“NARUC”). As the Commission also determined that an immediate transition to such flat charges might cause some subscribers to forgo telephone service, it settled upon an interim policy consisting of (1) relatively low initial flat charges beginning in June 1985, and (2) recovery of the balance of NTS costs through usage-based charges. See NARUC, 737 F.2d at 1107-10.
A. Non-Traffic Sensitive Cost Allocation
The principal issue in this case is whether the Commission properly allocated twenty-five percent of NTS costs to interstate jurisdiction, to be phased in over an eight-year period. The choice of the particular level of allocation, twenty-five percent, is related to changes that have occurred in the communications industry since 1970. In that year the FCC adopted the “Ozark Plan” to allocate NTS costs between the interstate and intrastate jurisdictions. Under the Ozark Plan, NTS costs were assigned to the interstate jurisdiction at the rate of approximately 3.3 times the proportion of interstate use. See MCI v. FCC, 750 F.2d at 137.
The Commission refers to that calculation as the “subscriber plant factor” or “SPF.” As the proportion of interstate use increased sharply after 1970, the SPF caused NTS costs assigned to the interstate jurisdiction to increase more than three times as fast. The Commission therefore decided, in 1982, to “freeze” at approximately twenty-six percent the proportion of NTS costs allocated to interstate use. We affirmed the freeze order in MCI v. FCC, 750 F.2d at 141, as an interim measure pending fuller resolution of the NTS cost problem.
In 1980, the Commission referred the cost allocation problem to a Federal-State Joint Board (“Board”) for study and recommendations. Three years later, in Joint Board I, supra n. *, the Board recommended that twenty-five percent of NTS costs be deemed interstate costs. In its First Decision, supra n. *, the Commission accepted with minor changes the recommendations in Joint Board I. Thus, although local companies’ NTS costs do not increase as a result of interstate use, the Commission decided to order interstate carriers to absorb some of the cost of local service. The Commission defends its decision primarily because the Board’s recommendation “approximated the existing nationwide average interstate allocation under frozen SPF,” and thereby avoided “substantial dislocations in the industry [which] might have a significant impact on local rates and thus on universal service.” Brief for FCC at 22-23. According to the Commission, the policy it has chosen prevents “future automatic increases” in NTS interstate allocation “under a usage-based formula such as SPF.” Id. at 23.
B. High Cost Apportionment
The Commission also determined that the twenty-five percent allocation of NTS costs to interstate jurisdiction would not sufficiently assist certain high cost local companies to maintain universal service, which is one of the Commission’s charges under the Communications Act, 47 U.S.C. § 151 (1982) (“For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide,... wire and radio communication service with adequate facilities at reasonable charges,... there is created a commission to be known as the ‘Federal Communications Commission',____” (emphasis added)). The Commission therefore proposes to create a federal “Universal Service Fund” (“Fund”) to “ensure that telephone rates are within the means of the average subscriber in all areas of the country, thus providing a foundation on which the states can build to develop programs tailored to their individual needs.” First Decision, 96 F.C.C.2d at 795. The Commission describes the high cost apportionment plan as follows:
In an effort to keep local service rates affordable to the average subscriber in all areas of the nation, the FCC adopted a high cost formula which allocates a larger percentage of the costs of high cost companies to the interstate jurisdiction. The high cost assistance plan targeted the greatest assistance to the smallest companies and the highest cost areas. As the FCC had provided in the initial Access Charge Decision, the high cost allocation would be recovered through a permanent universal service fund to be funded by usage charges contained in the rates of interexchange carriers.
Brief for FCC at 16-17 (footnotes omitted). According to the Commission, “use of the basic 25 percent interstate allocation for NTS local exchange costs would result in a slight increase in the interstate NTS allocation when combined with the additional interstate expense allocation for high cost areas.” First Decision, 96 F.C.C.2d at 790 n. 19.
C.Customer Premises Equipment
The Commission deregulated “customer premises equipment” (“CPE”) in 1983. See Amendment of Section 64.702, 77 F.C.C.2d 384 (1980), recon. 84 F.C.C.2d 50 (1980), further recon. 88 F.C.C.2d 512 (1981), aff'd sub nom. Computer & Communications Indus. Ass’n v. FCC, 693 F.2d 198 (D.C.Cir.1982), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983). The Commission, however, has declined to make an immediate withdrawal of CPE that is “embedded” in the rate bases of the former BOCs because it fears that doing so would cause considerable economic dislocation. Instead, the Commission has ordered a sixty-month phaseout of embedded CPE ending in December 1987. To “avoid undue economic dislocations,” we approved this phase-out plan in MCI v. FCC, 750 F.2d at 142. Under review in this case is the Commission’s decision to adhere to the phaseout plan even after the embedded CPE is transferred to AT & T. As the embedded CPE is transferred, the phase-out in essence requires the inclusion of CPE in the costs of local companies until December 1987, regardless of the fact that local companies do not really own CPE.
D. Relative Use Traffic Study Period
For many years, telephone companies have been required by the FCC’s Separations Manual to measure relative traffic over a “representative” period. These studies provide the basis for apportioning traffic sensitive costs and for dividing revenues among the companies. Brief for Rural Telephone Coalition at 21; Brief for FCC at 19. Before us for review is the Commission’s decision to accept the Joint Board’s recommendation that telephone companies be required to base their measurements on seven-day traffic study periods. In order to accomplish this goal, the Commission amended the Manual by requiring that the study periods be representative “for all traffic.” First Decision, 96 F.C.C.2d at 808-09 (emphasis added); see Joint Board I, 48 Fed.Reg. at 46,572-73.
E. Grounds for Review
Petitioners’ objections concern different aspects of the two Commission orders before us. MCI Telecommunications Corporation (“MCI”) focuses its attack on the Commission’s acceptance of the Joint Board recommendation that twenty-five percent of NTS costs be allocated to the interstate jurisdiction. It contends that that allocation has no other purpose but the redistribution of wealth through a form of tax, and that Congress has not delegated taxing authority to the Commission even if such delegation were constitutional. MCI also argues that the twenty-five percent allocation amounts to a taking of property for public use without just compensation, in violation of the Fifth Amendment to the Constitution. In addition, MCI claims that the CPE phase-out is based on fictitious “phantom plant,” and thus violates basic ratemaking principles. Finally, MCI challenges the high cost apportionment.
Rural Telephone Cooperative (“Rural”) limits its challenge to the Commission’s decision concerning the seven-day sampling period. Although Rural originally sought review of the Commission’s determination that the Regulatory Flexibility Act, 5 U.S.C. §§ 601 to 612 (1982), does not apply to small telephone companies, counsel for Rural moved the court to dismiss that part of the petition in No. 84-1110. As the court granted the motion, the Regulatory Flexibility Act issue is no longer before us.
For the reasons stated below, we affirm the challenged portions of the orders under review.
II. Discussion
A. Standard of Review
As the reviewing court, we must “interpret constitutional... provisions” ourselves. 5 U.S.C. § 706 (1982). See St. Francis Hosp. Center v. Heckler, 714 F.2d 872, 873 (7th Cir.1983) (“Deference to administrative expertise does not extend to judging the constitutionality of a statute or regulatory scheme.”), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). The FCC’s interpretation and application of its authorizing statute, however, will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1982). “This review is a narrow one; we must affirm the decision if we find that it is not contrary to law, that it is supported by substantial evidence and based upon a consideration of the relevant factors, and if we determine that the conclusions reached have a rational connection to the facts found.” American Telephone & Telegraph Co. v. FCC, 832 F.2d 1285, 1291 (D.C.Cir.1987).
B. Interstate NTS Allocation
1. Is it a Taking?
Allocating twenty-five percent of NTS costs to interstate jurisdiction in effect transfers those costs to the rate bases of interstate carriers, forces them to recover those costs through their rates, and reduces their profitability. The Supreme Court, however, has reviewed statutorily authorized economic regulation with great deference. The Court's recent decision in FCC v. Florida Power Corp., — U.S. -, 107 S.Ct. 1107, 94 L.Ed.2d 282 (1987), follows that pattern. In that case, the Court held that Commission regulations limiting the rate an electric utility can charge television cable operators for the use of electricity poles constitute neither a per se taking of the utility’s property, nor a taking under more traditional Fifth Amendment principles.
On the per se taking issue, the Court distinguished Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), on the basis that the FCC did not require the power company to allow the cable operators to use its poles. Florida Power, 107 S.Ct. at 1112. The Court then applied the Takings Clause principle that “[s]o long as the rates set are not confiscatory, the Fifth Amendment does not bar their imposition.” Id. at 1113 (citing St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 58, 56 S.Ct. 720, 726-27, 80 L.Ed. 1033 (1936), and Permian Basin Area Rate Cases, 390 U.S. 747, 770, 88 S.Ct. 1344, 1361-62, 20 L.Ed.2d 312 (1968)).
In this case, nothing in the record suggests that the Commission’s allocation of twenty-five percent of NTS costs to the interstate jurisdiction constitutes a confiscation of MCI’s property. Indeed, MCI cannot operate general long distance service without using the facilities of local exchange companies. The proposition cannot seriously be entertained that requiring MCI to absorb part of the NTS costs of local exchanges amounts to a confiscation. See Jersey Cent. Power & Light Co. v. Federal Energy Regulatory Comm’n, 810 F.2d 1168, 1181 n. 3 (D.C.Cir.1987) (en banc) (absent “deep financial hardship... there is no taking”).
More fundamentally, we find the facts in this case analogous to the situation confronting the Court in Florida Power, except that the parties here are inverted. In Florida Power, the television cable companies needed the utility’s plant to reach their subscribers, and the utility challenged the FCC rate as a taking. Here, MCI needs local companies’ NTS plant to reach its subscribers, but it is MCI that challenges the rate indirectly resulting from FCC jurisdictional action.
It is the nature of the rate action, rather than the identity of the party challenging it, that controls the decision whether the rate is a taking. Comparing the rate action in Florida Power to the probable effect of the twenty-five percent allocation on MCI’s profits, we can discern no difference rising to the level of a Takings Clause objection. The Commission has attempted to balance various public and private concerns, acknowledged MCI’s reliance on local company plant, and established an allocation figure which, on the average, scarcely differs from the “frozen SPF.”
2. Is it a Tax?
We also find unacceptable MCI’s argument that the twenty-five percent allocation is an exercise of taxing power that Congress has not delegated to the Commission, and that could not be delegated without violating the Taxing Clause, U.S. Const. art. I, § 8. In Brock v. Washington Metropolitan Area Transit Auth., 796 F.2d 481, 489 (D.C.Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1887, 95 L.Ed.2d 494 (1987), we warned that “[t]he definition of ‘tax’ in the abstract is a metaphysical exercise in which courts do not have occasion to engage.” Rather, a regulation is a tax only when its primary purpose judged in legal context is raising revenue. Id. at 488-89. There is no reasonable way to construe the NTS cost allocation as having the primary purpose of raising federal revenue. Cf. South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983) (it is not an exercise of taxing power, but of the power to regulate commerce, to exact deductions from sales of all commercially marketed milk to offset cost of milk price support program), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984).
As MCI has not cited any precedent holding that an agency’s exercise of a power to allocate costs among state and federal jurisdictions for purposes of ratemaking is equivalent to an exercise of the power to tax, we adhere to circuit precedent and reject MCI’s contention that the twenty-five percent allocation is a tax.
3. Is it a Prohibited Subsidy?
Finally, MCI contends that in enacting the Communications Act, Congress “intended to preserve the previous court decisions which interpreted the sections so transferred,” Brief for MCI at 58, including Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930). According to MCI, the twenty-five percent NTS allocation violates the doctrine of Smith because it is intended to create a subsidy or, in the alternative, has the effect of creating one. We have noted before that where “there is no purely economic method of allocation... elements of fairness and other noneconomic values inevitably enter the analysis of the choice to be made.” MCI Telecommunications Corp. v. FCC, 675 F.2d 408, 416 (D.C.Cir.1982). MCI relies on Smith, however, to reason that “each jurisdiction must stand independently and may not rely on the ratepayers in the other jurisdiction for support.” Brief for MCI at 53.
This is not the first time MCI has attempted to convince this court that Smith requires a particular method of separating costs. See MCI v. FCC, 750 F.2d at 140-41. Smith holds only that intrastate and interstate telephone costs must be separated for jurisdictional purposes, and that such separation must be done according to “reasonable measures.” 282 U.S. at 150, 51 S.Ct. at 69. MCI’s construction of Smith unduly emphasizes the Court’s requirement of separation at the expense of its admonition that separation must be reasonably made. In the past, we have not interpreted the separation requirement in Smith so strictly. We have held that “Smith does not constitutionally compel use of a particular formula. Smith compels ‘only reasonable measures.’ ” MCI v. FCC, 750 F.2d at 141. See also id. at 141 n. 34.
Thus, we distinguish Smith because we view the twenty-five percent NTS cost allocation as a step on the road towards an efficient national telephone rate structure based primarily on access charges levied directly on customers. The allocation is a “reasonable measure” acceptable under Smith because it is part of a transitional process, and “[i]nterim solutions may need to consider the past expectations of parties and the unfairness of abruptly shifting policies.” MCI v. FCC, 750 F.2d at 141. Moreover, as we stated in NARUC,
[t]he shift from one type of nondiscriminatory rate structure to another may certainly be accomplished gradually to permit the affected carriers, subscribers and state regulators to adjust to the new pricing system, thus preserving the efficient operation of the interstate telephone network during the interim.
737 F.2d at 1135-36.
Accordingly, we affirm the twenty-five percent NTS cost allocation as a reasonable and carefully considered element of the transition towards the access charge regime approved in the Access Charge Decision.
C. High Cost Apportionment
1. Statutory Authority
The Commission was established “to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide,... wire and radio communication service with adequate facilities at reasonable charges....” 47 U.S.C. § 151 (1982). Moreover, the Commission is authorized to “make such rules and regulations... as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i) (1982). As the Universal Service Fund was proposed in order to further the objective of making communication service available to all Americans at reasonable charges, the proposal was within the Commission’s statutory authority. We have recognized previously that universal service is an important FCC objective. See NARUC, 737 F.2d at 1108. Cf. GTE Service Corp. v. FCC, 474 F.2d 724, 730-31 (2d Cir.1973) (Commission has authority under 47 U.S.C. §§ 151 & 154(i) to regulate data processing activities of common carriers, which pose a “threat to efficient public communications services at reasonable prices”). Although § 154(i) “is not infinitely elastic,” North Am. Telecommunications Ass’n v. FCC, 772 F.2d 1282, 1292 (7th Cir.1985), the Commission’s action here falls within the “expansive powers” delegated to it by the Communications Act. NBC v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1010-11, 87 L.Ed. 1344 (1943).
Had the Commission proposed the Universal Service Fund for the purpose of subsidizing the incomes of impoverished telephone users, it would have exceeded its authority under section 154(i), as the provision of public welfare is not among its functions. Instead, the Commission explicitly (and properly) rejected “solving] the problems of the poor” as an appropriate objective of the Fund, and restricted its use to the more limited purpose of ensuring that “telephone rates are within the means of the average subscriber.” First Decision, 96 F.C.C.2d at 795.
2. Arbitrariness
The Joint Board, which was established to study the interplay of state and national interests in the telecommunications field, gave the competing issues and considerations concerning the Universal Service Fund exhaustive study and presented carefully thought-out recommendations. 48 Fed.Reg. at 46,566-69. These recommendations were subjected to extensive review and comment by all interested parties, were amply discussed by the Commission, 96 F.C.C.2d at 791-802, and the reasons for the Commission’s conclusions were adequately explained.
MCI nevertheless argues that the Commission acted arbitrarily and capriciously, for two reasons. First, the beneficiaries of the Fund are telephone companies, not consumers. Brief for MCI at 62-63. There is a risk, as the Commission recognized, that local companies will not use the additional interstate expense allocation to reduce local rates. The Commission concluded, however, that this risk was minimal:
the interest of state regulatory officials in keeping local rates affordable as well as the watchfulness of individual consumers and local consumer groups will ensure that this assistance is used for its intended purpose.... Furthermore, we are asking the Joint Board to monitor the future use of this assistance.
96 F.C.C.2d at 796. We find this assessment of the risk entirely reasonable.
Second, MCI argues that the financial assistance formulae are, in effect, arbitrary because they are not tied to the actual needs of the local populations. Funds are dispersed to areas in which NTS costs exceed 115% of the national average. These, however, may reflect the higher costs associated with recent expansion in boom areas. MCI also argues that the Commission’s proposal may lead to the paradoxical result that some of the most affluent and rapidly developing communities (e.g., in the Sun Belt) will be major beneficiaries of the Fund; that the high cost criterion may encourage overexpansion or mismanagement; and that the aggregate costs in an area bear no necessary relation to the financial needs of local populations. Brief for MCI at 63-66.
These objections give us pause, but we are persuaded that the Commission is sensitive to the problems and intends to resolve them as they arise. As the Commission notes, 96 F.C.C.2d at 792 n. 24, the Joint Board is studying the distribution of the Fund, and will issue supplemental recommendations to the Commission if the level of support provided to any area under the current formulae is inappropriate. See Joint Board I, 48 Fed.Reg. at 46,569.
The Fund as proposed may well produce anomalous results, and there may indeed be “better” means of aiding the truly needy. Brief for MCI at 62, 63. Our task, however, is not to determine the best means, but only to decide whether the means selected by the Commission are lawful, supported by substantial evidence after consideration of relevant factors, and rationally connected to the facts. The Commission determined that the Fund would serve the statutory objective of universal service at reasonable charges, 47 U.S.C. § 151 (1982). The Fund was not proposed as a welfare scheme; if it were, the Commission would have exceeded its authority. Rather, the Commission seeks to moderate excessive NTS local exchange plant costs in order to ensure that rates are within the means of the average subscriber. As an interim measure, this decision was within the Commission’s discretion.
D. Customer Premises Equipment
MCI’s principal basis for challenging the Commission’s decision regarding CPE is the argument that
the moment terminal equipment is deregulated and withdrawn from common carrier service, its costs must be removed from common carrier accounts. A gradual phase-out of terminal equipment costs would be completely unlawful since, during the phase-out period, regulated common carriers would be receiving a return on plant not “used and useful” in the provision of common carrier service.
Brief for MCI at 68 (citing Federal Power Comm’n v. National Gas Pipeline Co. of America, 315 U.S. 575, 590, 62 S.Ct. 736, 745, 86 L.Ed. 1037 (1942), and American Telephone & Telegraph Co., 64 F.C.C.2d 1, 47 (1977)).
In MCI v. FCC, 750 F.2d at 142, we rejected a challenge by MCI to the CPE phase-out plan. That challenge focused on the Commission’s decision that the immediate removal of embedded CPE from the rate bases of local companies would be unacceptably disruptive. In approving the phase-out plan, the court was fully aware of the possibility that local companies would benefit from counting CPE in their rate bases even though they did not own CPE. We emphasized that “[sjince the FCC could deregulate all CPE today, it is unreasonable to preclude the agency from avoiding hardships by denying it the power to phase-out the regulations.” Id. We see no reason to revisit this area, especially as MCI’s renewed attack is premised on a doctrine of limited weight. See Jersey Central, 810 F.2d at 1175 (“ ‘used and useful’ [has] ceased to have any constitutional significance, and the Commission has at times departed from this
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_state
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32
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. Alfonso Steve JIMENEZ, Defendant-Appellant.
No. 87-2633.
United States Court of Appeals, Tenth Circuit.
Dec. 29, 1988.
Stephen P. McCue, Federal Public Defender, Albuquerque, N.M., for defendant-appellant.
David N. Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-ap-pellee.
Before HOLLOWAY, Chief Judge, ANDERSON and EBEL, Circuit Judges.
HOLLOWAY, Chief Judge.
Defendant Alfonso Steve Jimenez (Jimenez) challenges the trial court’s denial of his motion to suppress a sawed-off shotgun seized from the trunk of his car by police officers during an accident investigation. The court held that the shotgun was lawfully seized because it was in plain view and would have inevitably been discovered during an inventory search. We affirm.
I
Jimenez’ car was totalled in a two car accident in Albuquerque. Police officers Daniel Torgrimson (Torgrimson) and Raymond Schultz (Schultz) were called to the scene at about 11:30 p.m. on March 2, 1987. Two occupants of Jimenez’ car and two or three occupants of the other car were seriously injured. Torgrimson and Schultz called a rescue squad, two ambulances and two wreckers.
Jimenez’ automobile had been hit behind the back doors and the trunk lid was bent up away from the body. The trunk was locked. II R. 9, 15, 31. The damage to the trunk created a gap approximately 5 to 12 inches high and 10 inches wide so that the inside of the trunk was visible. II R. 10, 32. After the rescue squad arrived, Schultz inspected both automobiles for “gasoline or battery acid or anything leaking from the vehicles which might cause some type of hazard_” II R. 30-31. Using his flashlight (there were no lights in the trunk), Schultz looked into the trunk of Jimenez’ car and saw “about 90 percent of a shotgun which had been altered or sawed off.” Id. at 31-32. Schultz never asked Jimenez for permission to look into the trunk. A jack was lying across the front of the gun. Schultz testified that by its positioning he could tell that the “whole barrel wasn’t there, however, [he] couldn’t tell exactly how much was there.” II R. 40. Schultz reached through the gap and took the gun out of the trunk. There were rounds in the magazine and the serial numbers had been filed off. II R. 33, 35-36.
The Albuquerque Police Department has a policy of inventorying the contents of towed vehicles and the contents of the interior of Jimenez’ car were inventoried. II R. 14, 17, 34-36. Trunks are also inventoried if the keys are present and the owner gives permission. The trunk of Jimenez’ car was either locked or inoperable because of the damage and was never opened and its contents were not inventoried. II R. 41.
One of the passengers of Jimenez’ car, Romero, was known to Officer Torgrimson. Torgrimson also had information that occupants of Jimenez’ car had been throwing objects over a building wall into a parking lot on the night of the accident. II R. 20. Torgrimson asked Schultz and another officer to “look for evidence in the car” and to check the vehicle. II R. 22. Torgrimson was not near the automobile when the gun was seized and neither he nor Schultz knew that it was in the trunk. II R. 22, 42.
The trial court denied Jimenez’ motion to suppress. In compliance with Fed.R.Crim.P. 12(e), the court made the following findings:
I feel that this was a seizure which was in plain view. I will find that an accident occurred in which the defendant’s vehicle was involved, that the lid of the trunk which may or may not have remained locked, was bent in such a way that it permitted an officer who was reasonably examining the automobile to determine how the accident happened, to determine whether or not there was property that should be inventoried.
The lid was damaged in such a way that it permitted the officer to look into the trunk. And when he shown his light, his flashlight into there, he saw this shotgun. I feel that the — and I will find that the shotgun was in plain view and that there was probable cause to associate the property with some criminal activity because of the configuration of the shotgun.
11 R. 54-55 (emphasis added). The court also held that the shotgun would have inevitably been discovered during an inventory of the trunk. II R. 55.
After the court denied the motion to suppress, Jimenez entered a conditional plea of guilty to an information charging him with being an accessory after the fact, a violation of 18 U.S.C. § 3 (1986) in connection with unlawful possession of the sawed-off 12 gauge shotgun, see 26 U.S.C. § 5845(a), a violation of 26 U.S.C. § 5861(d) and § 5871. I R. 14-15. Jimenez was sentenced to three years’ imprisonment with all but six months suspended, he was placed on probation for a period of three years, and a special assessment of $50 was imposed. II R. 15. He reserved his right to appeal the denial of the motion.
il
Analysis
“When reviewing the denial of a motion to suppress, the trial court’s findings of fact must be accepted unless they are clearly erroneous.” United States v. Ellison, 791 F.2d 821, 822 (10th Cir.1986) (citing United States v. Leach, 749 F.2d 592 (10th Cir 1984)). Since the government prevailed, we view the evidence at the suppression hearing in the light most favorable to the government. United States v. Comosona, 848 F.2d 1110, 1111 (10th Cir.1988). Having considered the record and the trial court’s findings, we hold that the plain view doctrine provided a proper ground for seizure of the sawed-off shotgun and that the defendant’s Fourth Amendment rights were not violated.
We' note initially that this case involves a seizure and not a search. A search occurs when there is an intrusion on a legitimate expectation of privacy. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). See also Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1984). Merely inspecting the parts of an object that come into view lawfully does not constitute a search. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987). See also Texas v. Brown, 460 U.S. 730, 738-740 n. 4, 103 S.Ct. 1535, 1541-1542 n. 4, 75 L.Ed.2d 502 (1982) (plurality opinion). Schultz was routinely inspecting Jimenez’ automobile when the sawed-off shotgun came into view. No search occurred. The question is whether the seizure of the shotgun which followed violated the Fourth Amendment.
In Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971) (plurality opinion of Stewart, J., joined by Douglas, Brennan, and Marshall JJ.), the plurality view was expressed that the plain view doctrine permits the warrantless seizure by police of private possessions where three requirements are satisfied. The requirements have been stated as follows:
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 [91 S.Ct. at 2037-2038.] 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 [91 S.Ct. at 2040.] 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 [91 S.Ct. at 2038.]
Texas v. Brown, 460 U.S. at 737, 103 S.Ct. at 1540. See also United States v. Justice, 835 F.2d 1310, 1312 (10th Cir.1987) (quoting United States v. Gabriel, 715 F.2d 1447, 1449-1450 (10th Cir.1983)).
The first requirement of the doctrine— that the initial intrusion be lawful or that the officer properly be in a position from which he can view a particular area — is clearly satisfied. The trial court found that the trunk was bent in such a way that “it permitted an officer who was reasonably examining the automobile to determine how the accident happened, to determine whether or not there was property that should be inventoried.” II R. 54 (emphasis added). The record supports this finding. Schultz said that he was checking both vehicles for gasoline or an overturned battery when he discovered the sawed-off shotgun. II R. 30-32. He was investigating the accident and was lawfully in a position from which he could view the inside of the trunk. Moreover, the use of the flashlight to illuminate Jimenez’ trunk “trenched upon no right secured to [Jimenez] by the Fourth Amendment.” Texas v. Brown, 460 U.S. at 739-740, 103 S.Ct. at 1541-1542; see also United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927).
The record also supports the court’s findings on the second prong of the plain view doctrine which requires inadvertent discovery. See Texas v. Brown, 460 U.S. at 737, 103 S.Ct. at 1540. The court found that the officer was reasonably examining the car to determine how the accident happened and whether property should be inventoried; the trunk lid was damaged so that he could look into the trunk and he flashed his light into it and saw the shotgun. II R. 54-55. Schultz testified that he was “looking to see if there was either a gas leakage or batteries which had turned over.” II R. 33. He further testified that until he looked into the trunk he had no reason to believe that there was a gun there. II R. 42. The record clearly supports the conclusion that Schultz discovered the sawed-off shotgun inadvertently. .
Jimenez argues that Torgrimson knew Romero and that Torgrimson ordered Schultz to check the vehicle and that the plain view doctrine is being employed here as a pretext. See Texas v. Brown, 460 U.S. at 737, 103 S.Ct. at 1540. But the record does not in any way indicate that the discovery of the sawed-off shotgun was not inadvertent or that the plain view doctrine is being employed here only as a pretext. In fact, Torgrimson never looked into the trunk himself; he was attending to other matters. II R. 22. Although he asked Schultz to check the vehicle, see II R. 22, there is no evidence in the record to suggest that he or Schultz knew of the location of the sawed-off shotgun and intended to seize it. II R. 22, 42. The sawed-off shotgun was discovered inadvertently.
Finally, there is evidence to support the trial court’s conclusion that “there was probable cause to associate the property with some criminal activity because of the configuration of the shotgun.” Hicks, 107 S.Ct. at 1149 (probable cause is required to invoke plain view doctrine); Texas v. Brown, 460 U.S. at 730, 738, 103 S.Ct. at 1537, 1541 (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). Schultz testified that when he looked into the trunk he could see 90 percent of the gun. Although he could not see exactly how long the barrel was “per se because there was a jack lying across the front of the gun, he knew the whole barrel wasn’t there. II R. 40. Schultz said that he knew “by the way the jack was laying that the barrel was not of normal length.” II R. 45. Schultz said that when he “looked in immediately, he could see the receiver, the barrel next to the receiver and the stock that had been cut off.” II R. at 44-45. Schultz knew as a policeman that it was “against the law to have sawed-off shotguns. . . .” II R. 45.
“[Pjrobable cause is a flexible, common sense standard.” Texas v. Brown, 460 U.S. at 742, 103 S.Ct. at 1543. It merely requires that the facts available to the officer would warrant a man of reasonable caution having a belief 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.” Texas v. Brown, 460 U.S. at 742, 103 S.Ct. at 1543. The rule of probable cause is a practical, nontechnical concept. See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). While Schultz could not see the entire barrel of the gun, there is sufficient evidence that he could tell, before he reached into the trunk, that the stock had been cut off and the barrel was not of normal length. The court’s finding that there was probable cause to associate the property with some criminal activity because of the configuration of the shotgun is not clearly errroneous. II R. at 54-55.
The sawed-off shotgun was in plain view and was lawfully seized from the damaged trunk of Jimenez’ car. We uphold the trial court’s denial of the motion to suppress on this basis and need not address the court’s alternative holding that the seizure was lawful under the inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431, 440-441, 448, 104 S.Ct. 2501, 2507-2508, 2511 (1983).
AFFIRMED.
. The trial judge’s findings on the motion to suppress were stated in detail and in full corn-pliance with Fed.R.Crim.P. 12(e) and have facilitated consideration of this appeal.
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
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14. Illinois
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20. Maine
21. Maryland
22. Massachussets
23. Michigan
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25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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sc_petitioner
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123
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
MISSISSIPPI POWER & LIGHT CO. v. MISSISSIPPI ex rel. MOORE, ATTORNEY GENERAL OF MISSISSIPPI, et al.
No. 86-1970.
Argued February 22, 1988
Decided June 24, 1988
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 377. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 383.
Rex E. Lee argued the cause for appellant. With him on the brief were George L. Saunders, Jr., David W. Carpenter, Robert R. Nordhaus, Howard E. Shapiro, and James K. Child, Jr.
Deputy Solicitor General Cohen argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Richard J. Lazarus, Catherine C. Cook, and Jerome M. Feit.
John L. Maxey II argued the cause for appellees. With him on the brief for appellee State of Mississippi were Mike Moore, Attorney General, Frank Spencer, Assistant Attorney General, and W. Glenn Watts, Special Assistant Attorney General. Jesse C. Pennington and Lewis Burke filed a brief for appellee Mississippi Legal Services Coalition.
Briefs of amici curiae urging affirmance were filed for the Consumer Federation of America et al. by Scott Hempling and Roger Colton; for the National Association of State Utility Consumer Advocates by Raymon E. Lark, Jr., Elizabeth Elliot, and Steven W. Hamm; and for the National Governors’ Association et al. by Benna Ruth Solomon and Robert H. Loeffler.
Briefs of amici curiae were filed for the Council of the city of New Orleans by Clinton A. Vince; for the Arkansas Public Service Commission et al. by Steve Clark, Attorney General of Arkansas, and Mary B. Stallcup, Deputy Attorney General, Wallace L. Duncan, James D. Pembroke, and J. Cathy Fogel; and for the Edison Electric Institute by James B. Liber-man, and Robert L. Baum.
Justice Stevens
delivered the opinion of the Court.
On July 1, 1985, Grand Gulf Unit 1, a major nuclear power-plant located in Port Gibson, Mississippi, began commercial operations. An order entered by the Federal Energy Regulatory Commission (FERC) required Mississippi Power and Light Company (MP&L) to purchase 33% of the plant’s output at rates determined by FERC to be just and reasonable. The Mississippi Public Service Commission (MPSC) subsequently granted MP&L an increase in its retail rates to enable it to recover the cost of its purchases of Grand Gulf power. On appeal, the Mississippi Supreme Court held that it was error to grant an increase in retail rates without first examining the prudence of the management decisions that led to the construction and completion of Grand Gulf 1. The question presented to us is whether the FERC proceedings have pre-empted such a prudence inquiry by the State Commission. For reasons similar to those set forth in Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 (1986), we conclude that the state proceedings are pre-empted and therefore reverse.
I
MP&L is one of four operating companies whose voting stock is wholly owned by Middle South Utilities (MSU), a public utility holding company. The four companies are engaged both in the wholesale sale of electricity to each other and to companies outside the MSU system and in the retail sale of electricity in separate service areas in Louisiana, Arkansas, Missouri, and Mississippi. Through MSU the four companies operate as an integrated power pool, with all energy in the entire system being distributed by a single dispatch center located in Pine Bluff, Arkansas. Wholesale transactions among the four operating companies historically have been governed by a succession of three “System Agreements,” which were filed with FERC in 1951, 1973, and 1982. The System Agreements have provided the basis for planning and operating the companies’ generating units on a single-system basis and for equalizing cost imbalances among the four companies.
The retail sales of each of the operating companies are regulated by one or more local regulatory agencies. For example, Arkansas Power and Light Company (AP&L) sells in both Arkansas and Missouri and therefore is regulated by both the Arkansas Public Service Commission and the Missouri Public Service Commission. MP&L’s retail rates are subject to the jurisdiction of the MPSC.
Through the 1950’s and into the 1960’s, most of the MSU system’s generating plants were fueled with oil or gas. In the late 1960’s, the MSU system sought to meet projected increases in demand and to diversify its fuel base by adding coal and nuclear generating units. It was originally contemplated that each of the four operating companies would finance and construct a nuclear power facility. Consistent with this scheme, MP&L was assigned to construct two nuclear power facilities at Port Gibson, Mississippi, Grand Gulf 1 and 2. The Grand Gulf project, however, proved too large for one operating company to finance. MSU therefore formed a new subsidiary, Middle South Energy, Inc. (MSE), to finance, own, and operate Grand Gulf. MSE acquired full title to Grand Gulf, but hired MP&L to design, construct, and operate the facilities.
In April 1974, MSE and MP&L applied to MPSC for a certificate of public convenience and necessity authorizing the construction of the plant. The State Commission granted the certificate, noting that MP&L was part of “an integrated electric system” and that “the Grand Gulf Project [would] serve as a major source of baseload capacity for the company and the entire Middle South System pooling arrangement.” App. to Motion to Dismiss 36-37.
By the late 1970’s it became apparent that systemwide demand in the ensuing years would be lower than had been forecast, making Grand Gulf’s capacity unnecessary. Moreover, regulatory delays, additional construction requirements, and severe inflation frustrated the project. Management decided to halt construction of Grand Gulf 2, but to complete Grand Gulf 1, largely on the assumption that the relatively low cost of nuclear fuel would make the overall cost of Grand Gulf power per kilowatt hour lower than that of alternative energy sources. As it turned out, however, the cost of completing Grand Gulf construction was about six times greater than had been projected. Consequently, the wholesale cost of Grand Gulf’s power greatly exceeds that of power produced in other system facilities.
The four operating companies considered various methods of allocating the cost of Grand Gulf’s power. In 1982 MSU filed two agreements with FERC. The first was a new System Agreement, which set forth the terms and conditions for coordinated operations and wholesale transactions among the four companies, including a scheme of “capacity equalization payments,” which were designed to ensure that each company contribute proportionately to the total costs of generating power on the system. Transactions related to the purchase of power from Grand Gulf 1, however, were not included in the 1982 System Agreement. The second agreement filed with FERC was the Unit Power Sales Agreement (UPSA), which provided wholesale rates for MSE’s sale of Grand Gulf 1 capacity and energy. Under the UPSA, AP&L was not obligated to purchase any of Grand Gulf’s capacity; LP&L was obligated to purchase 38.57%, NOPSI 29.8%, and MP&L 31.63%.
The FERC Proceedings
FERC assigned the agreements to two different Administrative Law Judges, who were charged with the task of determining whether the agreements were “just and reasonable” within the meaning of the Federal Power Act. Extensive hearings were held by each ALJ, in which numerous parties representing consumer interests and the various state regulatory agencies participated. Both judges concluded that because Grand Gulf was designed to serve the needs of the entire MSU system, the failure to distribute the costs associated with Grand Gulf among all members of the system rendered the agreements unduly discriminatory and that costs should be allocated in proportion to each company’s relative system demand. Middle South Services, Inc., 30 FERC ¶ 63,030, pp. 65,170-66,173 (1985) (1982 System Agreement); Middle South Energy, Inc., 26 FERC ¶63,044, pp. 65,105-65,108 (1984) (UPSA).
FERC consolidated the decisions of the Administrative Law Judges for review and issued its decision in June 1985. Middle South Energy, Inc., 31 FERC ¶61,305. The Commission acknowledged that it had before it difficult cost allocation issues and that there were “no easy answers.” After extensive review, FERC concluded that the most equitable result would be to adopt ALJ Liebman’s formula for allocating Grand Gulf costs.
The Commission affirmed and adopted the findings of the Administrative Law Judges that MSU is a highly integrated and coordinated power pool. It concluded that the result of this integration and coordination was “planning, construction, and operations which [were] conducted primarily for the system as a whole.” Id., at 61,645. Because it found that nuclear units on the System had been “planned to meet overall System needs and objectives,” it concluded “that some form of equalization of nuclear plant costs [was] necessary to achieve just, reasonable, and non-discriminatory rates among the MSU operating companies.” Id., at 61,655. The Commission agreed with the judges that the 1982 System Agreement and the UPSA as filed would not together produce proper cost allocation, but concluded that the 1982 System Agreement in conjunction with ALJ Liebman’s allocation of capacity costs associated with Grand Gulf would “achieve just and reasonable results.” Ibid. Thus FERC affirmed the allocation of 33% of Grand Gulf’s capacity costs to MP&L as just and reasonable. Although it did not expressly discuss the “prudence” of constructing Grand Gulf and bringing it on line, FERC implicitly accepted the uncontroverted testimony of the MSU executives who explained why they believed the decisions to construct and to complete Grand Gulf 1 were sound, and approved the finding that “continuing construction of Grand Gulf Unit No. 1 was prudent because Middle South’s executives believed Grand Gulf would enable the Middle South system to diversify its base load fuel mix and, it was projected, at the same time, produce power for a total cost (capacity and energy) which would be less than existing alternatives on the system.” 26 FERC, at 65,112-65,113; see 31 FERC, at 61,666 (affirming ALJ Liebman’s decision to the extent not modified).
The Commission later clarified certain aspects of its previous order in the course of considering several petitions for rehearing. It rejected contentions that its exercise of jurisdiction would destroy effective state regulation of retail rates. Specifically, FERC rejected claims that it could not exercise jurisdiction because such action would result in States being “precluded from judging the prudence of Grand Gulf costs and denied any say in the rate of return imposed as part of these costs” and “imping[e] on the State’s paramount authority in certification decisions regarding need, type, and costs of construction of new generating facilities.” Middle South Energy, Inc., 32 FERC ¶61,425, p. 61,951 (1985). FERC asserted that its opinion was “the result of a careful balancing of the state and Federal interests involved” and that it had paid “careful heed to the impact [its] decision would have on the states.” Id., at 61,951-61,952. FERC went on to reject the argument that allocation of Grand Gulf costs should be based on whether individual companies needed Grand Gulf capacity. Since Grand Gulf had been constructed to meet the needs and serve the goals of the entire system, FERC reasoned that “the allocation of Grand Gulf power must rest not on the ‘needs’ of an individual company, but rather on the principles of just, reasonable, non-discriminatory, and non-preferential rates.” Id., at 61,958. FERC emphasized that the parties had entered the pooling agreement voluntarily and that its decision did no more than “alter in as limited a means as possible the agreed-upon cost scheme, in order to achieve just, reasonable, non-discriminatory and non-preferential rates.” Id., at 61,961.
On review, the United States Court of Appeals for the District of Columbia Circuit affirmed FERC’s order that the four operating companies share the cost of the system’s investment in nuclear energy in proportion to their relative demand for energy generated by the system as a whole. The court first rejected various challenges to FERC’s authority to restructure the parties’ agreed-upon allocations, holding that the Federal Power Act (FPA) gave FERC the necessary authority. The court then affirmed FERC’s allocation of-Grand Gulf capacity and costs as both rational and within the Commission’s range of discretion to remedy unduly discriminatory rates. Mississippi Industries v. FERC, 257 U. S. App. D. C. 244, 285, 808 F. 2d 1525, 1566 (1987).
The State Proceedings
On November 16, 1984, before the FERC proceedings were completed, MP&L filed an application for a substantial increase in its retail rates. The major portion of the requested increase was based on the assumption that MP&L would be required to purchase 31.63% of the high-cost Grand Gulf power when the unit began operating on July 1, 1985, in accordance with the terms of the UPSA. After public hearings, on June 14, 1985, the Mississippi Commission entered an order allowing MP&L certain additional revenues, but denying MP&L any retail rate relief associated with Grand Gulf Unit 1. App. to Juris. Statement 33a.
On June 27, 1985, MP&L applied for rehearing of the order insofar as it denied any rate relief associated with Grand Gulf. As expected, Grand Gulf went on line on July 1, 1985, and MP&L became obligated consistent with FERC’s allocation to make net payments of about $27 million per month for Grand Gulf capacity. After public hearings on the rehearing petition, the MPSC found that MP&L would become insolvent if relief were not granted and allowed a rate increase to go into effect to recover a projected annual revenue deficiency of about $327 million. The increase was predicated entirely on the company’s need for revenues to cover the purchased power expenses associated with Grand Gulf 1. See id., at 39a.
In its order the MPSC noted that petitions for rehearing were pending before FERC, in which the MPSC was continuing to challenge the allocation of 33% of Grand Gulf’s power to MP&L. Id., at 28a. It stated that it intended “to vigorously pursue every available legal remedy challenging the validity and fairness of the FERC allocation to MP&L,” id., at 51a, and that appropriate rate adjustments would be made if that allocation was changed. The order made no reference to the prudence of the investment in Grand Gulf.
The Attorney General of Mississippi and certain other parties representing Mississippi consumers appealed to the Mississippi Supreme Court. Under Mississippi law, the MPSC has authority to establish just and reasonable rates which will lead to a fair rate of return for the utility. Miss. Code Ann. §77-3-39 (Supp. 1987). “A fair return is one which, under prudent and economical management, is just and reasonable to both the public and the utility.” Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Comm’n, 237 Miss. 157, 241, 113 So. 2d 622, 656 (1959); Mississippi Public Service Comm’n v. Mississippi Power Co., 429 So. 2d 883 (Miss. 1983). The appealing parties charged, inter alia, that the MPSC had exceeded the scope of its authority by adopting “retail rates to pay Grand Gulf expenses without first determining that the expenses were prudently incurred.” Mississippi ex rel. Pittman v. Mississippi Public Service Comm’n, 506 So. 2d 978, 979 (Miss. 1987). The State Supreme Court agreed, rejecting the argument that requiring the MPSC to review the prudence of incurring costs associated with Grand Gulf would violate the Supremacy Clause of the United States Constitution. The court concluded that MP&L and its sister and parent companies were “using the jurisdictional relationship between state and federal regulatory agencies to completely evade a prudency review of Grand Gulf costs” by either state or federal agencies and remanded the case to the MPSC for further proceedings.. The court held that FERC’s determination that MP&L’s assumption of a 33% share of the costs associated with Grand Gulf would be fair to its sister operating companies did not obligate the State to approve a pass-through of those costs to state consumers without a prudence review.
The court rejected MP&L’s argument that the decision of this Court in Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 (1986), which barred the State of North Carolina from setting retail rates that did not take into account FERC’s allocation of power between two related utility companies, foreclosed a state prudence review. Nantahala, the state court concluded, simply did not force the “MPSC to set rates based on the construction and operation of a plant (nuclear or otherwise) that generates power that is not needed at a price that is not prudent.” 506 So. 2d, at 985. The court assumed that only the fact that Grand Gulf was owned by an out-of-state corporation as opposed to MP&L created a question whether a state prudence determination was preempted and concluded that that fact was not enough to rob it of authority. The court distinguished Nantahala because that case concerned an agreement allocating low-cost power, and the prudence of purchasing the available low-cost hydroelectric power was never at issue.
The state court adopted the view that in determining whether a particular aspect of state regulation was preempted by FERC action, the state court should “‘examine those matters actually determined, whether expressly or impliedly, by the FERC.’” 506 So. 2d, at 986 (quoting Appeal of Sinclair Machine Products, Inc., 126 N. H. 822, 833, 498 A. 2d 696, 704 (1985)). It concluded that “ ‘[a]s to those matters not resolved by the FERC, State regulation is not preempted provided that regulation would not contradict or undermine FERC determinations and federal interests, or impose inconsistent obligations on the utility companies involved.’” 506 So. 2d, at 986. The court then noted that FERC “was never presented with the question of whether the completion of Grand Gulf, or its continued operation, was prudent” ibid., and that the Court of Appeals in affirming FERC’s allocation had “made no finding with regard to prudency because the issue was not presented.” Id., at 987 (emphasis in original). Consistent with this analysis, the Mississippi Supreme Court remanded the case to the MPSC “for a review of the prudency of the Grand Gulf investment.” The court specified that this review should “determine whether MP&L, [MSE] and MSU acted reasonably when they constructed Grand Gulf 1, in light of the change in demand for electric power in this state and the sudden escalation of costs.” Ibid. Thus the MPSC was directed to examine the prudence of the investment of both domestic and foreign corporations in Grand Gulf “in light of local conditions.” Ibid, (emphasis in original).
Appellant MP&L contends that our decision in Nantahala, the FPA, and the Commerce Clause require the MPSC in setting retail electric rates to recognize that expenses incurred under FERC wholesale rate decisions that allocate interstate wholesale costs are reasonably incurred operating expenses. In essence appellant asserts that FERC’s allocation of Grand Gulf power pre-empts the jurisdiction of state regulatory agencies to set retail rates that do not recognize the costs associated with that allocation as reasonable. Ap-pellees contend that the Supremacy Clause does not preclude review of MP&L’s managerial prudence and that the effect of pre-emption would be to create a regulatory gap not contemplated by Congress, the Constitution, or this Court.
II
We hold that our decision in Nantahala rests on a foundation that is broad enough to support the order entered by FERC in this case and to require the MPSC to treat MP&L’s FERC-mandated payments for Grand Gulf costs as reasonably incurred operating expenses for the purpose of setting MP&L’s retail rates. The Mississippi Supreme Court’s judgment ordering the MPSC to conduct proceedings to determine whether some or all of the costs were not prudently incurred is pre-empted by federal law and must be reversed.
In Nantahala we considered the pre-emptive' effect of a FERC order that reallocated the respective shares of two affiliated companies’ entitlement to low-cost power. Under an agreement between the two affiliated companies, Nan-tahala, a public utility selling to both retail and wholesale customers in North Carolina, had been allocated 20% of the low-cost power purchased from the Tennessee Valley Authority (TVA), while 80% was reserved for the affiliate whose only customer was their common parent. FERC found that the agreement was unfair to Nantahala and ordered it to file a new wholesale rate schedule based on an entitlement to 22.5% of the low-cost power purchased from TVA. Subsequently, in a retail rate proceeding, the North Carolina Regulatory Commission reexamined the issue and determined that any share less than 24.5% was unfair and therefore ordered Nantahala to calculate its costs for retail ratemaking purposes as though it had received 24.5% of the low-cost power. The effect of the State Commission’s order was to force Nantahala to calculate its retail rates as though FERC had allocated it a greater share of the low-cost power and to deny Nantahala the right to recover a portion of the costs it had incurred in paying rates that FERC had determined to be just and reasonable. Although the North Carolina Supreme Court acknowledged FERC’s exclusive jurisdiction over wholesale rates, it held that the State Commission’s de facto reallocation of low-cost power was “‘well within the field of exclusive state rate making authority engendered by the “bright line” between state and federal regulatory jurisdiction under the Federal Power Act.’” Nantahala, 476 U. S., at 961 (quoting State ex rel. Utilities Comm’n v. Nantahala Power & Light Co., 313 N. C. 614, 687-688, 332 S. E. 2d 397, 440-441 (1985)). The state court emphasized that its order did not require Nantahala to violate the FERC order and that it was not expressly contradicting a FERC finding. We rejected these arguments. The reasoning that led to our decision in Nantahala applies with equal force here and compels the same conclusion — States may not alter FERC-ordered allocations of power by substituting their own determin
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
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269. National Labor Relations Board, or regional office or officer
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307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_casesource
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159
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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.
IN RE WHITTINGTON.
No. 701.
Argued April 2, 1968.
Decided May 20, 1968.
Jack Supman and Daniel A. Rezneck argued the cause for petitioner. With them on the briefs was Judson C. Kistler.
E. Raymond Morehart and Merritt W. Green argued the cause for the State of Ohio. On the brief with Mr. Morehart was S. Farrell Jackson.
Briefs of amici curiae, urging reversal, were filed by Edward Q. Carr, Jr., and Leon B. Polsky for the Legal Aid Society of New York, and by the Defender’s Office, Cleveland Legal Aid Society.
Briefs of amid curiae were filed by Mr. Green for the National Council of Juvenile Court Judges, and by George R. Georgiejf, Assistant Attorney General of Florida, for the Florida Council of Juvenile Court Judges.
Per Curiam.
Petitioner, who was 14 years old at the time, was adjudged a delinquent by the Juvenile Court of Fairfield County, Ohio, on September 7, 1966, on the basis of the trial judge’s finding that there was “probable cause” to believe that he had committed a crime that would be a felony if committed by an adult, namely, second-degree murder. Petitioner appealed to the Ohio Court of Appeals for Fairfield County, contending that the proceeding in the Juvenile Court which resulted in the order adjudicating him a delinquent violated his rights under the Due Process Clause of the Fourteenth Amendment. Specifically he argued- that he had been determined to be a delinquent on the basis of an unconstitutionally low standard of proof, and that he had been denied his constitutional rights to trial by jury, to an impartial tribunal, and to bail pending disposition of the case against him; he also contended that his privilege against self-incrimination had been violated by the admission into evidence against him of statements made in response to questioning from police officers. The Ohio Court of Appeals rejected these contentions and affirmed the judgment of the Juvenile Court on January 3, 1967. 13 Ohio App. 2d 11, 233 N. E. 2d 333. On March 15, 1967, the Supreme Court of Ohio, sua sponte, dismissed petitioner’s further appeal on the ground that it presented “no substantial constitutional question.” Petitioner then filed a petition for certiorari in this Court, which we granted, 389 U. S. 819 (1967), raising the same issues presented in the Ohio courts.
Under Ohio law an adjudication that a child is a delinquent can have numerous substantial consequences. For example, once such a determination is made the Juvenile Court may place the child in a variety of state institutions or in a foster home. Ohio Rev. Code § 2151.35. Another alternative disposition in a case where the child has been found to have committed a felony is for the Juvenile Court to bind the child over to the Court of Common Pleas for trial under the criminal statutes applicable to adults. Ohio Rev. Code § 2151.26. At the time the petition for certiorari was filed in this case on April 11, 1967, no disposition beyond the adjudication itself and ordering of a physical and mental examination of petitioner had been made by the Juvenile Court. We have since been informed by the parties that petitioner has been bound over for trial as an adult and that he has been indicted for the crime of first-degree murder.
The State argues vigorously that, because of the disposition subsequently made by the Juvenile Court, the proceeding at which the determination of delinquency was made was merely the equivalent of a probable cause hearing for an adult. Petitioner, on the other hand, asserts that his adjudication as a delinquent is final for purposes of appellate review and that substantial consequences of that decision continue despite the supervening transfer of jurisdiction over petitioner to the adult criminal courts. The resolution of this dispute is crucial to many of the issues presented by petitioner, since, for example, in ordinary probable cause hearings involving adults there is no right to either trial by jury or a finding of guilt beyond a reasonable doubt. The unresolved question under Ohio law is not whether the adjudication of delinquency is a final, appealable order. The Ohio Court of Appeals considered that issue and ruled that the order is appealable, and the Ohio Supreme Court necessarily accepted this conclusion because its dismissal of the appeal was not based on the jurisdictional issue. The question which the Ohio courts have not settled is what, if any, effect the “disposition” order, entered after their decisions on the appeal and after the petition for certiorari was filed here, has upon the prior delinquency determination made by the Juvenile Court.
On the constitutional issues, petitioner relies heavily on In re Gault, 387 U. S. 1, which was decided on May 15, 1967, some two months after the dismissal by the Ohio Supreme Court in this case. In Gault, this Court held squarely, for the first time., that various of the federal constitutional guarantees accompanying ordinary criminal proceedings were applicable to state juvenile court proceedings where possible commitment to a state institution was involved. Because the Ohio courts have not had the opportunity to assess the impact of that decision on petitioner’s claims, we deem it appropriate to vacate the judgment of the Ohio Court of Appeals and remand the case for reconsideration in light of Gault. Upon such remand, the Ohio court may, of course, also consider the impact, if any, on the questions raised by petitioner of the intervening order of the Juvenile Court requiring him to face trial in the adult courts.
The judgment is vacated and the case is remanded to the Ohio Court of Appeals for Fairfield County for consideration in light of In re Gault, 387 U. S. 1 (1967).
Vacated and remanded.
In addition, Ohio specifically provides that a delinquency judgment may be considered by any court with respect to sentencing or probation in subsequent criminal proceedings. Ohio Rev. Code §2151.35. For a general discussion of the practical consequences for juveniles of a delinquency record, see the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 66-67, 75 (1967), and its Task Force Report: Juvenile Delinquency and Youth Crime 92-93, 360-361, 385, 417-418 (1967).
Question: What is the court whose decision the Supreme Court reviewed?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_summary
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
RCA CORPORATION v. LOCAL 241, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, Appeal of RCA CORPORATION, Appeal of LOCAL 241, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO.
Nos. 82-5090, 82-5222, 82-5266 and 82-5317.
United States Court of Appeals, Third Circuit.
Argued Nov. 16, 1982.
Decided March 1, 1983.
Rehearing and Rehearing En Banc Denied April 7, 1983.
Bernard G. Segal, John H. Leddy (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant.
Ira Silverstein (argued), Meranze, Katz, Spear & Wilderman, Philadelphia, Pa., for appellee.
Before GIBBONS, HIGGINBOTHAM and BECKER, Circuit Judges.
OPINION OF THE COURT
. A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
This appeal arises from a final judgment and order of the United States District Court for the District of New Jersey. In the action below RCA Corporation (“RCA”) sought a declaratory judgment that two unilateral decisions of the RCA Retirement Benefits Committee regarding RCA’s Retirement Plan should not be subject to the arbitration provisions of its collective bargaining agreement or any other agreement between RCA and Local 241, International Federation of Professional & Technical Engineers (“Local 241”). RCA and Local 241 each filed a Motion for Summary Judgment.
The district court granted and denied both motions in part. The district court concluded that the disputes were arbitrable to the extent that the claims involved alleged violations of the General Collective Bargaining Agreement and Supplementary Agreements thereto which expressly provided for arbitration. The district court held that the claims were non-arbitrable to the extent that they involved violations of the Retirement Plan alone and on the merits of that issue granted summary judgment to RCA. In short, the court below found that the General Collective Bargaining Agreement and Supplementary Agreement, not the Retirement Plan, contemplated arbitration.
On January 12, 1982, RCA filed a timely Notice of Appeal limited to that portion of the district court’s order requiring arbitration. The appeal was docketed in this Court as No. 82-5090. On January 20, 1982, RCA sent a letter to Local 241 notifying Local 241 that RCA had ordered a copy of the district court transcript for use in its appeal. Local 241 acknowledged RCA’s letter on January 25, 1982. On February 16, 1982, three weeks after the 14-day deadline within which a notice of appeal must be filed as prescribed by Federal Rule of Appellate Procedure 4(a)(3), Local 241 motioned the district court for an extension of time in which to file a notice of cross-appeal from the district court’s order relating to the non-arbitrability of the Retirement Plan.
Because of a misrepresentation by Local 241 alleging that it had not received notice of RCA’s appeal until after the 14-day period had elapsed, and because of a mix-up in the Office of the Clerk of the District Court resulting in the non-delivery of RCA’s Memorandum of Law in Opposition to Local 241’s Motion, Local 241’s motion was granted. Pursuant to this extension Local 241 filed a Notice of Appeal on March 16, 1982, which this Court designated as No. 82-5222.
On March 19, 1982, immediately after it learned of the extension granted to Local 241, RCA moved the district court to reconsider and vacate the March 8 order granting Local 241 an extension of time in which to file a notice of appeal.
Resting its decision on the unrebutted evidence that Local 241 was notified of RCA’s notice of appeal prior to the January 26, 1982 deadline, the district court, in a Letter Opinion dated April 19, 1982, vacated its March 8 order granting Local 241 an extension. Additionally, the district court issued an order on May 3, 1982, giving effect to the April 19, 1982 Letter Opinion.
Local 241 appealed the May 3,1982 order. That appeal was docketed in this Court as No. 82-5317, and on May 4, 1982, Local 241 filed another appeal, No. 82-5266, from the April 19, 1982 Letter Opinion.
We will affirm the district court’s vacation of its March 8 order granting Local 241 an extension of time in which to file a Notice of Appeal and therefore we will dismiss Local 241’s appeals, docketed in this Court as No. 82-5222, No. 82-5317 and No. 82-5266.
We will affirm also the district court’s decision, in 82-5090, requiring RCA to arbitrate the unilateral actions of its Retirement Benefits Committee because Local 241 alleged that these unilateral actions violate Section 3.01 and 3.02 of the General Agreement and 57.03 of the Supplementary Agreement.
I. FACTS
The parties agree to the essential facts underlying this appeal. RCA and Local 241 are parties to a General Collective Bargaining Agreement, two Supplementary Agreements and a Retirement Plan. (App. 13a-129a). The General Collective Bargaining Agreement, expressly, and the Supplementary Agreement, by reference, provide for the arbitration of grievances arising under those agreements. The Retirement Plan, however, contains no provision for arbitration of grievances or disputes arising under that plan.
The disputes which Local 241 seeks to arbitrate involve two unilateral changes in the Retirement Plan. The first dispute stems from the fact that the Retirement Benefits Committee unilaterally increased the interest rate assumption used in calculating the actuarial lump sum equivalences to extended monthly benefits paid under the Retirement Plan. By raising the interest rate “assumed” over the next X years, the present value and therefore dollar amount of lump-sum benefits.paid today is decreased.
The second dispute concerns the “buyback” interest rate applied to withdrawn contributions of previously terminated employees. RCA permits laid off or términated employees to “buy-back” their pension credit if upon departing from RCA they had withdrawn their contributions. The buyback price equals the withdrawn contributions compounded annually at a specified interest rate. Terminated employees who return as so-called new employees are charged five (5) percent while laid off employees are charged six (6) percent when recalled.
RCA has refused to recognize the arbitrability Of Local 241’s challenge to these unilateral actions of the Retirement Benefits Committee.
II. DISCUSSION
The question before this Court is limited to the issue of arbitrability. Delimiting the role of this Court in this manner is well settled, and the question of arbitrability has often been framed as follows:
Arbitration is a matter of contract and a party can not be required to submit to arbitration any dispute which he has not agreed so to submit. Whether or not a party to a contract is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court, not by the arbitrator, on the basis of the contract entered into by the parties. United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582 [80 S.Ct. 1347,1352, 4 L.Ed.2d 1409] (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 [82 S.Ct. 1318, 1320, 8 L.Ed.2d 1581] (1962); John Wiley and Sons, Inc. v. Livingston, etc., 376 U.S. 543, 546-47 [84 S.Ct. 909, 912-13, 11 L.Ed.2d 898] (1964); Retail Clerks International Ass’n, Etc. v. Lion Dry Goods, 341 F.2d 715, 719-20 (6th Cir.1965).
(Quoted in, Radio Corporation of America v. Association of Scientists and Professional Engineering Personnel, 414 F.2d 893, 895 (3d Cir.1969)). Mindful of the narrow questions before us, we must determine whether RCA and Local 241 agreed to submit to arbitration disputes regarding the unilateral increase of the interest rate assumption used in calculating lump sum benefits. We must decide also whether the parties agreed to submit to arbitration disputes concerning the interest rate used to calculate the buyback price of pension benefits where the interest rate distinguishes between those employees returning following a lay off and those employees returning following prior termination.
A. Appeals No. 82-5222, No. 82-5266 and No. 82-5317
In this part we first must determine whether the district court had the jurisdiction to vacate its March 8 order granting Local 241 an extension of time in which to file a notice of appeal.
The central question which underlies these three appeals is whether the filing of a notice of appeal by a party divests a trial judge of jurisdiction.
In United States v. Leppo, 634 F.2d 101, 104 (3d Cir.1980), Judge Aldisert, writing for a unanimous court, explained:
[Ojrdinarily the trial court loses its power to proceed once a party files a notice of appeal. [Citations omitted]. This rule is not based on statutory provisions or the rules of procedure. Rather, it is a judge-made rule designed to avoid confusion or waste of time that might flow from putting the same issues before two courts at the same time. As Professor Moore has observed, the rule “should not be employed to defeat its purpose or to induce needless paper shuffling.” 9 J. Moore, Federal Practice § 203.11 at 3-44 n. 1 (1980); see C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure § 3949, at 358-59 (1977) (emphasis added.)
Local 241 failed to file a notice of appeal within the 14-day period but was granted an extension by the district court because Local 241 alleged that it had received no notice of RCA’s appeal until the 14-day period had elapsed. The trial court also had believed, due to a mix-up in the Office of the Clerk of the District Court, that Local 241’s motion was unopposed by RCA.
Upon learning of the district court’s March 8 order granting Local 241 an extension of time, RCA moved the court to reconsider. In its motion, RCA offered unrebutted evidence that Local 241 had actual knowledge of RCA’s Notice of Appeal prior to the running of the 14-day period. RCA also offered undisputed evidence that it had filed a timely Memorandum of Law in Opposition to Local 241’s initial motion seeking an extension of time. Based on the above reasons, the district court vacated its March 8 order which had granted Local 241 an extension of time in which to file a notice of appeal.
We agree with Judge Aldisert’s reasoning in Leppo, 634 F.2d at 104, that the rule which requires a trial judge to divest himself of a case once a party has filed a notice of appeal “should not be employed to defeat its purpose or to induce unnecessary paper shuffling.” Id.
In the instant case the trial judge vacated the March 8 order because he had relied upon misrepresentations by Local 241’s counsel and because he erroneously believed Local 241’s motion was unopposed. Because of the unusual nature of these circumstances, we hold that the trial court had the jurisdiction to vacate its March 8 order and thereby deny Local 241, retroactively, an extension of time in which to file a notice of appeal regarding the matter docketed at No. 82-5222.
Having ruled that the district court had jurisdiction, we next must determine whether the court acted properly in denying the extension of time for Local 241 to file its cross-appeal; we will not reverse the district court’s decision unless we find that the court abused its discretion in so ruling, see Pellegrino v. Marathon Bank, 640 F.2d 696, 698 (5th Cir.1981). We cannot find on this record any such abuse of discretion. It appears that any delay in Local 241’s receiving notice of RCA’s appeal was due to coordination problems between the Philadelphia and Atlantic City offices of the union’s own attorneys. Moreover, it is clear that Local 241 had more than a day to file notice of its cross-appeal even after receiving belated notice of RCA’s appeal. We therefore dismiss the cross-appeal and affirm the rulings of the district court.
B. Appeal No. 82-5090
Next, we consider the case docketed by this Court as No. 5090. In deciding whether the two challenged unilateral actions of the Retirement Benefits Committee in that case are the subject of arbitration we must analyze the agreements on which the alleged right to arbitration is based. The agreements divide essentially into two categories.
One category consists of the relevant provisions of the General Agreement and Supplementary Agreement covering RCA employees at the Company’s Moorestown, New Jersey plant, which provisions mirror those of the General Agreement and Supplementary Agreement covering RCA employees at the Company’s Camden, New Jersey plant. (App. 13a-69a; App. 70a-129a, respectively). Because the relevant provisions in both sets of agreements are identical and because the district court treated and referred to them as one General Collective Bargaining Agreement (or “General Agreement”) we will analyze these provisions as one collective bargaining agreement when possible. The other category contains a single agreement, the Retirement Plan, on which Local 241 at the trial court level and on appeal in No. 82-5222 had based its alleged right to arbitrate the challenged two unilateral actions of the Retirement Benefits Committee.
We begin our discussion with the General Collective Bargaining Agreement. It is undisputed that under the General Collective Bargaining Agreement Local 241 and RCA have agreed to arbitrate disputes with regard to the interpretation or application of any provision of the General Agreement. Thus, the initial question we must decide here is whether Local 241, as the party seeking arbitration, is making a claim which is governed by the General Collective Bargaining Agreement. Additionally and simultaneously we must determine whether the issues asserted by Local 241 are within the purview of the particular arbitration clauses. See Bristol Farmers Market v. Arlen Realty, 589 F.2d 1214, 1217-18 (3d Cir. 1978). We do not, however, decide the merits of the grievances. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1352.
It is irrelevant to this question that the two challenged provisions originated in the Retirement Plan. The right to arbitration stems from the actions of RCA’s Retirement Benefits Committee in alleged contravention of provisions of the General Agreement. Whether the challenged actions were taken under the auspices of the Retirement Plan, another plan or no plan does not change our analysis. We are concerned only with actions that are alleged to violate particular provisions of a collective bargaining agreement which provides for arbitration of disputes concerning its interpretation or application.
The provisions of the General Collective Bargaining Agreement which Local 241 alleged were violated and whose application to the challenged unilateral actions the district court ordered RCA to arbitrate are Paragraphs 3.01 and 3.02 of the General Agreement and Paragraph 57.03 of the Supplementary Agreement. These provisions are set out in full as follows:
General Agreement and Paragraph 57.03 of the local plant Supplementary Agreement.
Paragraph 3.01, Bargaining Unit Recognition, states:
The Company recognizes the Union as the sole collective bargaining agency with respect to rates of pay, wages, hours and other conditions of employment for all employees in those bargaining units for which the Union and any affiliated chapter has been or shall be recognized through appropriate means satisfactory to both Parties as the sole collective bargaining agency. (App. 16a)
Paragraph 3.02, Provision Against Coercion, Intimidation, and Discrimination, states:
It is mutually agreed that there shall be no coercion, intimidation or discrimination by the Company or the Union or any of its members because of race, color, sex, national origin, political or religious belief, age, handicap, veteran’s status or membership or non-membership in the Union. Coercion, intimidation or discrimination shall not exist where age is a bona fide occupational qualification or is a factor under the Company’s established retirement policy as set forth in the RCA Retirement Plan. (App. 16a)
Paragraph 57.03, Joint Committee, states:
There shall be a joint committee consisting of two (2) members appointed by the Company and two (2) members appointed by the Chapter, which shall hold monthly meetings and shall be authorized to confer and make recommendations without respect to questions of fact relating to age, service, and eligibility under the Retirement Plan. (App. 51a)
In the instant case, Local 241 asserts that RCA’s Retirement Benefits Committee’s increasing of the interest rate assumption used in calculating the actuarial lump sum equivalencies to extended monthly benefits under the Retirement Plan violates Section 3.01 of the General Agreement and Section 57.03 of the Supplementary Agreement. Regarding Section 3.01, Local 241 asserts that RCA’s failure to negotiate this change, which may adversely affect the lump sum benefits available to its members, violates Section 3.01 which recognizes the union as the exclusive bargaining agent for its members with respect to rates of pay, wages, hours and other conditions of employment. Regarding Section 57.03, which establishes a joint labor-management committee to make recommendations concerning the pension plan, Local 241 asserts that the employer’s unilateral increase of the interest rate assumption circumvented the role of this joint labor-management committee in violation of Section 57.03.
Local 241 also alleges that the buy-back interest rate applied to withdrawn contributions of previously terminated employees violates Section 3.02 of the General Agreement. The purpose of Section 3.02 is to exclude “discrimination by the Company ... because of .. . membership or non-membership in the union.” (App. 16a). Local 241 asserts that the practice of charging a buy-back interest rate of six percent to laid off employees while charging terminated employees, who return as “new” employees only five percent violates Section 3.02 in that it discriminates against union members, i.e., those who have remained members of the union while they are in laid-off status, and favors non-union members, i.e., those who have dropped out of the union during the time they were terminated.
RCA answers that its increase of the interest assumption rate and increase of interest rate used to calculate the buy-back price could not be interpreted reasonably as violations of Paragraphs 3.01 and 3.02 of the General Agreement or Paragraph 57.03 of the Supplementary Agreement and therefore arbitration cannot be had.
The determination of the merits of this ease rests within the province of the arbitrator. The arbitrator under the facts of this case would be limited in his authority and power. He could not decide the interest rate used in calculating the buyback price, nor could he decide the appropriate actuarial assumptions for lump-sum benefits. The arbitrator simply has the authority and power to order that the unilateral changes regarding the appropriate buyback interest rate and actuarial assumption “be revoked until such time as negotiations had taken place and reached impasse.” Local 241, during oral argument, indicated that if RCA and it reached an impasse following the arbitrator’s order to bargain, RCA “would probably” be free to adopt the disputed unilateral actions of the Retirement Benefits Committee. For the above reasons, we hold that arbitration is the proper method to decide the merits.
While we already have dismissed the cross-appeal challenging the district court’s failure to find the Retirement Plan to be an independent basis supporting arbitration, it is useful nonetheless to discuss the cross-appeal with a view toward testing the validity of our other conclusion and completing the picture.
RCA contends that disputes concerning the interpretation or application of particular provisions of the Retirement Plan are non-arbitrable because the Retirement Plan and its amendment fail to provide mandatory arbitration provisions and because the Retirement Plan establishes the Retirement Benefits Committee as the body having exclusive power to settle disputes.
Local 241, however, contends that because RCA has entered into a collective bargaining agreement, which expressly provides for arbitration and mentions the Retirement Plan, and because the General Collective Bargaining Agreement recognizes the union as the sole bargaining agent with regard to wages and conditions of employment, the Retirement Plan is arbitrable.
The district court found, and we agree, that the Retirement Plan fails to provide an independent basis for mandatory arbitration. As the district court stated:
The retirement plan itself does not contain a provision for the arbitration of disputes or issues arising under it. Nor is the plan a jointly administered one, as such plans are established under section 302 of the Labor-Management Relations Act which contains specific requirements for the resolutions of disputes by arbitration. The retirement plan is administered exclusively by RCA, which is its sole fiduciary under section 402(a)(1) of ERISA.
(App. 301a)
The negotiations between plaintiff and its unions over changes in the retirement plan are conducted separately, [have] always been so, from negotiations concerning the general collective bargaining agreement. Proposals to amend the retirement plan are separately prepared and considered and the effective and termination dates [are different].
(Id. 302a.)
Moreover there is no provision in the General Agreement that either brings or seeks to bring the Retirement Plan within the ambit of the General Agreement. The mere mentioning of the Retirement Plan in the General Agreement is insufficient reason to construe the Retirement Plan as part and parcel of the General Agreement.
The district court correctly found that the Retirement Plan was not adopted by the General Collective Bargaining Agreement as such. The district court focused on the following omissions:
The retirement plan agreements do not correspond to those of past or present collective bargaining agreements.... The retirement plan does not provide for the arbitration of disputes, as indicated earlier .... The retirement benefits committee has the power to “determine any questions arising in the administration, interpretation and application of the plan, which determination shall be conclusive and binding on all persons concerned.”
Although the defendant local has made proposals to amend the plan as affects its membership and the parties have adopted amendments to the plan, no arbitration provision for the retirement plan was ever proposed or discussed.
(Id. 302a-03a).
Because the Retirement Plan fails to provide for arbitration either independently or when read in conjunction with the General Agreement, we find the part of the district court’s opinion that held the provisions of the Retirement Plan non-arbitrable on an incorporation basis to be entirely consistent with that portion of the district court’s order requiring arbitration based on the General Collective Bargaining Agreement.
CONCLUSION
We are satisfied that Local 241’s allegations satisfy the threshold requirement for arbitration under its General Collective Bargaining Agreement with RCA; thus we will affirm the judgment of the district court granting Local 241’s Motion for Summary Judgment as to its claim under Paragraphs 3.01, 3.02 and 57.03 of the Collective Bargaining Agreement.
We will affirm also the district court’s vacation of its March 8 order granting Local 241 an extension of time in which to file a Notice of Appeal and therefore we will dismiss the appeals, docketed in this Court as No. 82-5222, No. 82-5317 and No. 82-5266.
. RCA’s Board of Directors makes annual appointments of the Retirement Benefits Committee. The Retirement Benefits Committee is responsible for administering the Retirement Plan.
. By deciding that the district court had jurisdiction and the power to vacate its March 8 order, we automatically decide cases docketed as No. 82-5222, No. 82-5266 and No. 82-5317 against Local 241. These three are inextricably tied because in 82-5266 and 82-5317 Local 241 asserts that the district court lacks the jurisdiction to vacate its March 8 order vacating the extension of time which was essential to the viability of 82-5222.
. "Chapter” is used to describe an affiliation of Union Local 241.
. Transcript of Oral Argument at 34. Local 241 conceded this limited authority and power of the arbitrator. Local 241 also concluded that the arbitrator would not be within the scope of his authority or power to determine the buy-back interest rate or actuarial assumption. Id.
. Id.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_decisiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
MIDDENDORF, SECRETARY OF THE NAVY, et al. v. HENRY et al.
No. 74-175.
Argued January 22, 1975
Reargued November 5, 1975
Decided March 24, 1976
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Powell, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 49. Stewart, J., filed a dissenting statement, post, p. 49. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 51. Stevens, J., took no part in the consideration or decision of the cases.
Harvey M. Stone argued the cause pro hac vice for petitioners in No. 7-N-175 and respondents in No. 74-5176 on the reargument. Deputy Solicitor General Frey argued the cause for those parties on the original argument. With Mr. Stone on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Harriet S. Shapiro, Sidney M. Glaser, Merlin H. Staring, H. B. Robertson, Jr., and Max G. Halliday.
Nathan R. Zahm reargued the cause for petitioners in No. 74-5176 and respondents in No. 74-175. With him on the briefs were A. L. Wirin, Fred Okrand, David F. Addlestone, and Thomas M. Geisler, Jr.
Together with No. 74-5176, Henry et al. v. Middendorf, Secretary of the Navy, et al., also on certiorari to the same court.
Mr. Justice Rehnquist
delivered the opinion of the Court.
In February 1973 plaintiffs — then enlisted members of the United States Marine Corps — brought this class action in the United States District Court for the Central District of California challenging the authority of the military to try them at summary courts-martial without providing them with counsel. Five plaintiffs had been charged with “unauthorized absences” in violation of Art. 86, UCMJ, 10 U. S. C. § 886, convicted at summary courts-martial, and sentenced, inter alia, to periods of confinement ranging from 20 to 30 days at hard labor. The other three plaintiffs, two of whom were charged, inter alia, with unauthorized absence and one with assault, Art. 128, UCMJ, 10 U. S. C. § 928, had been ordered to stand trial at summary courts-martial which had not been convened. Those who were convicted had not been provided counsel — those who were awaiting trial had been informed that counsel would not be provided. All convicted plaintiffs were informed prior to trial that they would not be afforded counsel and that they could refuse trial by summary court-martial if they so desired. In the event of such refusal their cases would be referred to special courts-martial at which counsel would be provided. All plaintiffs consented in writing to proceed to trial by summary court-martial, without counsel. Plaintiffs’ court-martial records were reviewed and approved by the Staff Judge Advocate pursuant to Art. 65 (c), UCMJ, 10 U. S. C. § 865 (c). Plaintiffs did not file a petition for review with the Judge Advocate General of the Navy pursuant to Art. 69, UCMJ, 10 U. S. C. § 869.
In the District Court, plaintiffs brought a class action seeking habeas corpus (release from confinement), an injunction against future confinement resulting from un-counseled summary court-martial convictions, and an order vacating the convictions of those previously convicted.
The District Court allowed the suit to proceed as a class action, expunged all of plaintiffs’ convictions, released all plaintiffs and all other members of their class from confinement, and issued a worldwide injunction against summary courts-martial without counsel. Because of our disposition of this case on the merits, we have no occasion to reach the question of whether Fed. Rule Civ. Proc. 23, providing for class actions, is applicable to petitions for habeas corpus, see Harris v. Nelson, 394 U. S. 286 (1969), or whether the District Court properly determined that its remedial order was entitled to be enforced outside of the territorial limits of the district in which the court sat.
The Court of Appeals vacated the judgment of the District Court, and remanded the case for reconsideration in light of the Court of Appeals’ opinion in Daigle v. Warner, 490 F. 2d 358 (CA9 1973). Daigle had held that there was no Sixth Amendment right to counsel in summary courts-martial, and likewise held that there was no absolute Fifth Amendment due process right to counsel in every case in which a military defendant might be imprisoned. However, citing Gagnon v. Scarpelli, 411 U. S. 778 (1973), it did hold that counsel was required where the “accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances.” Daigle made an exception from this general rule for cases in which counsel "is not reasonably available,” in which instance it would not be required. 490 F. 2d, at 365. We granted certiorari. 419 U. S. 895 (1974).
I
The UCMJ provides four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art. 15, UCMJ, 10 U. S. C. § 815. General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense. General courts-martial are authorized to award any lawful sentence, including death. Art. 18, UCMJ, 10 U. S. C. § 818. Special courts-martial may award a bad-conduct discharge, up to six months’ confinement at hard labor, forfeiture of two-thirds pay per month for six months, and in the case of an enlisted member, reduction to the lowest pay grade, Art. 19, UCMJ, 10 U. S. C. § 819. Article 15 punishment, conducted personally by the accused’s commanding officer, is an administrative method of dealing with the most minor offenses. Parker v. Levy, 417 U. S. 733, 750 (1974).
The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, “is to exercise justice promptly for relatively minor offenses under a simple form of procedure.” Manual for Courts-Martial ¶ 79a (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U. S. C. § 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call. MCM ¶ 79d (1). The accused must consent to trial by summary court-martial; if he does not do so, trial may be ordered by special or general court-martial.
The maximum sentence elements which may be imposed by summary courts-martial are: one month’s confinement at hard labor; 45 days’ hard labor without confinement; two months’ restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20, UCMJ, 10 U. S. C. § 820.
II
The question of whether an accused in a court-martial has a constitutional right to counsel has been much debated and never squarely resolved. See Reid v. Covert, 354 U. S. 1, 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 123 (1866), said that “the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth.” In Ex parte Quirin, 317 U. S. 1, 40 (1942), it was said that “ ‘cases arising in the land' or naval forces’... are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth.”
We find it unnecessary in this case to finally resolve the broader aspects of this question, since we conclude that even were the Sixth Amendment to be held applicable to court-martial proceedings, the summary court-martial provided for in these cases was not a “criminal prosecution” within the meaning of that Amendment.
This conclusion, of course, does not answer the ultimate question of whether the plaintiffs are entitled to counsel at a summary court-martial proceeding, but it does shift the frame of reference from the Sixth Amendment’s guarantee of counsel “[i]n all criminal prosecutions” to the Fifth Amendment’s prohibition against the deprivation of “life, liberty, or property, without due process of law.”
Argersinger v. Hamlin, 407 U. S. 25 (1972), held that the Sixth Amendment’s provision for the assistance of counsel extended to misdemeanor prosecutions in civilian courts if conviction would result in imprisonment. A summary court-martial may impose 30 days’ confinement at hard labor, which is doubtless the military equivalent of imprisonment. Yet the fact that the outcome of a proceeding may result in loss of liberty does not by itself, even in civilian life, mean that the Sixth Amendment’s guarantee of counsel is applicable. In Gagnon v. Scarpelli, 411 U. S. 778 (1973), the respondent faced the prospect of being sent to prison as a result of the revocation of his probation, but we held that the revocation proceeding was nonetheless not a "criminal proceeding.” We took pains in that case to observe:
“[T]here are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.
“In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole.” Id., at 788-789.
In re Gault, 387 U. S. 1 (1967), involved a proceeding in which a juvenile was threatened with confinement. The Court,. although holding counsel was required, went on to say:
“ ‘We do not mean... to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.’ ” Id., at 30.
The Court’s distinction between various civilian proceedings, and its conclusion that, notwithstanding the potential loss of liberty, neither juvenile hearings nor probation revocation hearings are “criminal proceedings,” are equally relevant in assessing the role of the summary court-martial in the military.
The summary court-martial is, as noted above, one of four types of proceedings by which the military imposes discipline or punishment. If we were to remove the holding of Argersinger from its civilian context and apply it to require counsel before a summary court-martial proceeding simply because loss of liberty may result from such a proceeding, it would seem all but inescapable that counsel would likewise be required for the lowest level of military proceeding for dealing with the most minor offenses. For even the so-called Art. 15 “nonjudicial punishment,” which may be imposed administratively by the commanding officer, may result in the imposition upon an enlisted man of “correctional custody” with hard labor for not more than 30 consecutive days. 10 U. S. C. § 815 (b). But we think that the analysis made in cases such as Gagnon and Gault, as well as considerations peculiar to the military, counsel against such a mechanical application of Argersinger.
Admittedly Gagnon is distinguishable in that there the defendant had been earlier sentenced at the close of an orthodox criminal prosecution. But Gault is not so distinguishable: there the juvenile faced possible initial confinement as a result of the proceeding in question, but the Court nevertheless based its conclusion that counsel was required on the Due Process Clause of the Fourteenth Amendment, rather than on any determination that the hearing was a “criminal prosecution” within the meaning of the Sixth Amendment.
It seems to us indisputably clear, therefore, that even in a civilian context the fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution” for purposes of the Sixth Amendment. Nor does the fact that confinement will be imposed in the first instance as a result of that proceeding make it a “criminal prosecution.” When we consider in addition the fact that a summary court-martial occurs in the military community, rather than the civilian community, we believe that the considerations supporting the conclusion that it is not a “criminal prosecution” are at least as strong as those which were held dispositive in Gagnon and Gault.
The dissent points out, post, at 56-57, n. 6, that in Gault the Court gave weight to the rehabilitative purpose of the juvenile proceedings there involved, and that no such factor is present in summary courts-martial. Undoubtedly both Gault and Gagnon are factually distinguishable from the summary court-martial proceeding here. But together they surely stand for the proposition that even in the civilian community a proceeding which may result in deprivation of liberty is nonetheless not a “criminal proceeding” within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial. The summary court-martial proceeding here is likewise different from a traditional trial in many respects, the most important of which is that it occurs within the military community. This latter factor, under a long line of decisions of this Court, is every bit as significant, and every bit as entitled to be given controlling weight, as the fact in Gagnon that the defendant had been previously sentenced, or the fact in Gault that the proceeding had a rehabilitative purpose.
We have only recently noted the difference between the diverse civilian community and the much more tightly regimented military community in Parker v. Levy, 417 U. S. 733, 749 (1974). We said there that the UCMJ “cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community.” Ibid. Much of the conduct proscribed by the military is not “criminal” conduct in the civilian sense of the word. Id., at 749-751.
Here, for example, most of the plaintiffs were charged solely with “unauthorized absence," an offense which has no common-law counterpart and which carries little popular opprobrium. Conviction of such an offense would likely have no consequences for the accused beyond the immediate punishment meted out by the military, unlike conviction for such civilian misdemeanors as vagrancy or larceny which could carry a stamp of “bad character” with conviction.
By the same token, the penalties which may be meted out in summary courts-martial are limited to one month’s confinement at hard labor, 45 days’ hard labor without confinement, or two months’ restriction to specified limits. Sanctions which may be imposed affecting a property interest are limited to reduction in grade with attendant loss of pay, or forfeiture or detention of a portion of one month’s pay.
Finally, a summary court-martial is procedurally quite different from a criminal trial. In the first place, it is not an adversary proceeding. Yet the adversary nature of civilian criminal proceedings is one of the touchstones of the Sixth Amendment’s right to counsel which we extended to petty offenses in Argersinger v. Hamlin, 407 U. S. 25 (1972).
Argersinger relied on Gideon v. Wainwright, 372 U. S. 335 (1963), where we held:
“[I]n our adversary system of criminal justice, any person haled into court... cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society....” Id., at 344.
The function of the presiding officer is quite different from that of any participant in a civilian trial. He is guided by the admonition in ¶ 79a of the MCM: “The function of a summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure. The summary court will thoroughly and impartially inquire into both sides of the matter and will assure that the interests of both the Government and the accused are safeguarded.” The presiding officer is more specifically enjoined to attend to the interests of the accused by these provisions of the same paragraph:
“The accused will be extended the right to cross-examine these witnesses. The summary court will aid the accused in the cross-examination, and, if the accused desires, will ask questions suggested by the accused. On behalf of the accused, the court will obtain the attendance of witnesses, administer the oath and examine them, and obtain such other evidence as may tend to disprove or negative guilt of the charges, explain the acts or omissions charged, show extenuating circumstances, or establish grounds for mitigation. Before determining the findings, he will explain to the accused his right to testify on the merits or to remain silent and will give the accused full opportunity to exercise his election.” MCM ¶ 79d (3).
We believe there are significant parallels between the Court’s description of probation and parole revocation proceedings in Gagnon and the summary court-martial, which parallels tend to distinguish both of these proceedings from the civilian misdemeanor prosecution upon which Argersinger focused. When we consider in addition that the court-martial proceeding takes place not in civilian society, as does the parole revocation proceeding, but in the military community with all of its distinctive qualities, we conclude that a summary court-martial is not a “criminal prosecution” for purposes of the Sixth Amendment.
III
The Court of Appeals likewise concluded that there was no Sixth Amendment right to counsel in summary court-martial proceedings such as this, but applying the due process standards of the Fifth Amendment adopted a standard from Gagnon v. Scarpelli, 411 U. S. 778 (1973), which would have made the right to counsel depend upon the nature of the serviceman’s defense. We are unable to agree that the Court of Appeals properly applied Gagnon in this military context.
We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment.
However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U. S. 539, 556 (1974).
In making such an analysis we must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, § 8, that counsel should not be provided in summary courts-martial. As we held in Burns v. Wilson, 346 U. S. 137, 140 (1953):
“[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress.” (Footnote omitted.)
The United States Court of Military Appeals has held that Argersinger is applicable to the military and requires counsel at summary courts-martial. United States v. Alderman, 22 U. S. C. M. A. 298, 46 C. M. R. 298 (1973). Dealing with areas of law peculiar to the military branches, the Court of Military Appeals’ judgments are normally entitled to great deference. But the 2-to-l decision, in which the majority itself was sharply divided in theory, does not reject the claim of military necessity. Judge Quinn was of the opinion that Argersinger’s expansion of the Sixth Amendment right to counsel was binding on military tribunals equally with civilian courts. Alderman, supra, at 300, 46 C. M. R., at 300. Judge Duncan, concurring in part, disagreed, reasoning that decisions such as Argersinger were not binding precedent if “there is demonstrated a military necessity demanding nonapplicability.” Id., at 303, 46 C. M. R., at 303. He found no convincing evidence of military necessity which would preclude application of Argersinger. Chief Judge Darden, dissenting, disagreed with Judge Quinn, and pointed to that court’s decisions recognizing “the need for balancing the application of the constitutional protection against military needs.” Id., at 307, 46 C. M. R., at 307. Taking issue as well with Judge Duncan, he stated his belief that the Court of Military Appeals “possesses no special competence to evaluate the effect of a particular procedure on morale and discipline and to require its implementation over and above the balance struck by Congress.” Id., at 308, 46 C. M. R., at 308.
Given that only one member of the Court of Military Appeals took issue with the claim of military necessity, and taking the latter of Chief Judge Darden’s statements as applying with at least equal force to the Members of this Court, we are left with Congress’ previous determination that counsel is not required. We thus need only decide whether the factors militating in favor of counsel at summary courts-martial are so extraordinarily weighty as to overcome the balance struck by Congress.
We first consider the effect of providing counsel at summary courts-martial. As we observed in Gagnon v. Scarpelli, supra, at 787:
"The introduction of counsel into a... proceeding will alter significantly the nature of the proceeding. If counsel is provided for the [accused], the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views.”
In short, presence of counsel will turn a brief, informal hearing which may be quickly convened and rapidly concluded into an attenuated proceeding which consumes the resources of the military to a degree which Congress could properly have felt to be beyond what is warranted by the relative insignificance of the offenses being tried. Such a lengthy proceeding is a particular burden to the Armed Forces because virtually all the participants, including the defendant and his counsel, are members of the military whose time may be better spent than in possibly protracted disputes over the imposition of discipline.
As we observed in U. S. ex rel. Toth v. Quarles, 350 U. S. 11, 17 (1955):
“[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served.... [Military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.”
However, the Court of Appeals did not find counsel necessary in all proceedings but only, pursuant to Daigle v. Warner, where the accused makes
“a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances." 490 F. 2d, at 365.
But if the accused has such a claim, if he feels that in order to properly air his views and vindicate his rights, a formal, counseled proceeding is necessary he may simply refuse trial by summary court-martial and proceed to trial by special or general court-martial at which he may have counsel. Thus, he stands in a considerably more favorable position than the probationer in Gagnon who, though subject to the possibility of longer periods of incarceration, had no such absolute right to counsel.
It is true that by exercising this option the accused subjects himself to greater possible penalties imposed in the special court-martial proceeding. However, we do not find that possible detriment to be constitutionally decisive. We have frequently approved the much more difficult decision, daily faced by civilian criminal defendants, to plead guilty to a lesser included offense. E. g., Brady v. United States, 397 U. S. 742, 749-750 (1970). In such a case the defendant gives up not only his right to counsel but his right to any trial at all. Furthermore, if he elects to exercise his right to trial he stands to be convicted of a more serious offense which will likely bear increased penalties.
Such choices are a necessary part of the criminal justice system:
“The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments’ as to which course to follow. McMann v. Richardson, 397 U. S., at 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” McGautha v. California, 402 U. S. 183, 213 (1971).
We therefore agree with the defendants that neither the Sixth nor the Fifth Amendment to the United States Constitution empowers us to overturn the congressional determination that counsel is not required in summary courts-martial. The judgment of the Court of Appeals is therefore
Reversed.
Mr. Justice Stevens took no part in the consideration or decision of these cases.
Both parties have petitioned from the judgment of the court below. For simplicity we refer to the servicemen as “plaintiffs” and the federal parties as “defendants.”
Including two who were not among the original six plaintiffs but later intervened.
One of these plaintiffs was also charged with several other offenses, including assault on a superior noncommissioned officer, Art. 91, Uniform Code of Military Justice (UCMJ), 10 U. S. C. § 891.
Plaintiffs were so informed and consented pursuant to the terms of (Navy) Staff Judge Advocate Memorandum 10-72 which was in force at El Toro Marine Corps Air Station where all plaintiffs were stationed. Record 18.
For example, as to plaintiff Henry, the following entry appears in the record of his court-martial:
“The accused was advised that, if tried by Summary Court-Martial, he would not be represented by appointed military counsel; that instead, that Summary Court-Martial Officer would thoroughly and impartially inquire into both sides of the matter, and would assure that the interests of both the Government and the accused are safeguarded; that, if his case were that referred to a Special Courts-Martial [sic], he would be provided counsel. In addition, the accused, after being informed of the maximum punishment imposable in his case both by a Summary Courts-Martial [sic] and Special Courts-Martial [sic], he would be foregoing his statutory rights to counsel at a Special Courts-Martials [sic].” Id,., at 114.
At least one plaintiff, McLean, was found not guilty as to certain charges at the summary court-martial. Upon review at the supervisory authority level, guilty findings on certain other charges upon which he had been convicted were reversed.
These plaintiffs arguably failed to exhaust their military remedies. However, the defendants urge that exhaustion not be required here because the practice of the Judge Advocate General has been to defer consideration of any petitions on the right-to-counsel issue pending the completion of litigation on this issue in the federal courts.
Since the exhaustion requirement is designed to protect the military from undue interference by the federal courts, Schlesinger v. Councilman, 420 U. S. 738, 758 (1975), the military can waive that requirement where it feels that review in the federal courts is necessary. See Sosna v. Iowa, 419 U. S. 393, 396-397, n. 3 (1975).
The class included all members of the Navy and Marine Corps who “were or are now or will be required after (the date of the order) to stand trial by summary courts-martial” and who had not been afforded counsel. 357 F. Supp. 495, 499 (1973).
These features are mandatory for general courts-martial.' Special courts-martial may be, but seldom are, convened without a military judge; in such cases, the senior member of the court presides. Appointed defense counsel at a special court-martial is required to be an attorney, unless an attorney cannot be obtained because of physical conditions or military exigencies. In addition to the appointed counsel at a general or special court-martial, the accused may retain civilian counsel at his own expense, or he may be represented by a military lawyer of his own selection, if such lawyer is “reasonably available.” Arts. 16, 25, 27 (b), 27 (c), 38 (b), UCMJ, 10 U. S. C. §§ 816, 825, 827 (b), 827 (c), 838 (b).
The maximum punishments which may be imposed under Art. 15 are: 30 days’ correctional custody; 60 days’ restriction to specified limits; 45 days’ extra duties; forfeiture of one-half of one month’s pay per month for two months; detention of one-half of one month’s pay per month for three months; reduction in grade. Enlisted members attached to or embarked on a vessel may be sentenced to three days’ confinement on bread and water or diminished rations. Correctional custody is not necessarily the same as confinement. It is intended to be served in a way which allows normal performance of duty, together with intensive counseling. Persons serving correctional custody, however, may be confined. Art. 15 (b). See Department of the Navy, SECNAV Inst. 1640.9, Corrections Manual, c. 7, June 1972; Department of the Army, Pamphlet No. 27-4, Correctional Custody, 1 June 1972; Department of the Air Force, Reg. 125-35, Correctional Custody, 7 Oct. 1970.
Additionally, the officer must inform the accused of his right to remain silent and allow him to cross-examine witnesses or have the summary court officer cross-examine them for him. The accused may testify and present evidence in his own behalf. If the accused is found guilty he may make a statement, sworn or unsworn, in extenuation or mitigation. MCM ¶ 79d.
The record of the trial is then reviewed by the convening officer, Art. 60, UCMJ, 10 U. S. C. § 860, and thereafter by a Judge advocate. Art. 65 (c), UCMJ, 10.U. S. C. §865 (c).
Not all these sentence elements may be imposed in one sentence, and enlisted persons above the fourth enlisted pay grade may not be sentenced to confinement or hard labor by summary courts-martial, or reduced except to the next inferior grade. MCM ¶¶ 16b and 127c.
Compare, Wiener, Courts-Martial and the Bill of Rights: The Original Practice, 72 Harv. L. Rev. 1 (1958), which finds that there is no historic precedent for application of the right to counsel to courts-martial, with Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957), which concludes that the original intent of the Framers was to apply the Sixth Amendment right to counsel to the military. Compare Daigle v. Warner, 490 F. 2d 358 (CA9 1973), with Betonie v. Sizemore, 496 F. 2d 1001 (CA5 1974).
Since under our Brother Marshall’s analysis the Sixth Amendment applies to the military, it would appear that not only the right to counsel but the right to jury trial, which is likewise guaranteed by that Amendment, would come with it. While under Duncan v. Louisiana, 391 U. S. 145 (1968), such a right would presumably not obtain in cases of summary courts-martial because of the short periods of confinement which they may impose, it would surely apply to special and general courts-martial, which are empowered to impose sentences far in excess of those held in Duncan to be the maximum which could be imposed without a jury. Whatever may be the merits of “selective incorporation” under the Fourteenth Amendment, the Sixth Amendment makes absolutely no distinction between the right to jury trial and the right to counsel.
Chief Judge Darden, dissenting in United States v. Alderman, 22 U. S. C. M. A. 298, 46 C. M. R. 298 (1973), made a similar observation:
“While it may be argued that counsel should be required for summary courts-martial since they constitute criminal convictions and not for Article 15 proceedings as they are nonjudicial and corrective in nature, the effect of confinement under the former and correctional custody under the latter is difficult to distinguish. See In re Gault, 387 U. S. 1 (1967). Consequently, I would have difficulty in sus-taming the position that while counsel must be provided before summary courts-martial, they may be dispensed with in Article 15 proceedings that may result in correctional custody.” Id., at 308 n
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_decisiondirection
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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 the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
NATIONAL LABOR RELATIONS BOARD et al. v. UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 23, AFL-CIO
No. 86-594.
Argued October 5, 1987
Decided December 14, 1987
Brennan, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, in which Rehnquist, C. J., and White and O’Connor, JJ., joined, post, p. 133.
Norton J. Come argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Cohen, Andrew J. Pincus, Linda Sher, and Eric G. Moskowitz.
Laurence Gold argued the cause for respondent. With him on the brief were George Murphy, Peter Ford, David Silberman, and George Kaufmann.
John S. Irving, Glenn Summers, Stephen A. Bokat, and Robin S. Conrad filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
Justice Brennan
delivered the opinion of the Court.
The question to be decided in this case is whether a federal court has authority to review a decision of the National Labor Relations Board’s General Counsel dismissing an unfair labor practice complaint pursuant to an informal settlement in which the charging party refused to join. We hold that such a dismissal is not subject to judicial review under either the amended National Labor Relations Act or the Administrative Procedure Act.
I
In August 1984, respondent, the United Food Workers, filed unfair labor practice charges with the Pittsburgh regional office of the National Labor Relations Board (Board). The charges alleged that Charley Brothers, Inc., the owner of several grocery stores, and the United Steelworkers Union (Steelworkers) had committed an unfair labor practice by bargaining for and executing a collective-bargaining agreement for a Charley Brothers store where the Steelworkers did not represent an uncoerced majority of the employees. The Regional Director duly investigated the charges, and entered into settlement negotiations with Charley Brothers and the Steelworkers. No agreement was reached, and the Regional Director filed a formal complaint substantially incorporating respondent’s charges.
On September 24,1984, Vic’s Market’s, Inc. (Vic’s), bought the relevant store, and the Regional Director filed a second complaint that reflected this fact. A hearing on the complaints was scheduled for December 4, 1984. However, shortly before the hearing was to begin, Vic’s, Charley Brothers, the Steelworkers, and the Regional Director came to a tentative settlement agreement. The agreement called for the charged parties to take certain remedial action in return for dismissal of the complaint, but they were not required to admit that they had committed any unfair labor practice. The Regional Director invited respondent to join the agreement, but respondent refused, citing a number of purported deficiencies.
Eventually, the settlement was entered into by all parties except respondent, who, as permitted by Board regulations, challenged the Regional Director’s action before the General Counsel. The General Counsel determined that there was no need for an evidentiary hearing and sustained the settlement. Respondent then sought review in the United States Court of Appeals for the Third Circuit.
The Board argued that the petition for review should be dismissed on the ground that the court lacked jurisdiction to review an informal settlement that did not result in an order of the Board and that was entered into before hearings began. Alternatively, the Board argued that the settlement should be sustained. The Court of Appeals, considering itself bound by its own precedent, concluded that it had jurisdiction and on the merits held that the complaint should not have been dismissed without an evidentiary hearing. 788 F. 2d 178 (1986). We granted the Board’s petition for a writ of certiorari to resolve a conflict among the Courts of Appeals. 479 U. S. 1029 (1987). We now reverse.
h — I ► — I
Petitioners argue that the courts of appeals have no jurisdiction under the National Labor Relations Act (NLRA) to review settlement decisions of the General Counsel that do not result in Board orders and that are entered into before the commencement of hearings on the complaint. Respondent asserts two grounds for jurisdiction. The first is that all settlements occurring after a complaint is filed must be approved by the Board. Because final orders of the Board are judicially reviewable under § 10(f) of the NLRA, 49 Stat. 455, as amended, 29 U. S. C. § 160(f), respondent maintains that the courts of appeals have jurisdiction to review settlements. Alternatively, respondent argues that because the General Counsel acts “on behalf of the Board,” his or her decisions are subject to judicial review as if they were orders “of the Board.” Neither of respondent’s submissions persuades us.
A
The NLRA, as originally enacted, granted the Board plenary authority over all aspects of unfair labor practice disputes: the Board controlled not only the filing of complaints, but their prosecution and adjudication. The Labor Management Relations Act, 1947 (LMRA), 61 Stat. 136, altered this structure.
One of the major goals of the LMRA was to divide the old Board’s prosecutorial and adjudicatory functions between two entities. The House passed a bill that would have created a separate agency, known as the “office of Administrator of the National Labor Relations Act,” to prosecute unfair labor practice complaints. Under the House bill, the Board would have been retained to adjudicate the disputes. The Conference Committee did not go so far as to create a new agency. It did, though, determine that the General Counsel of the Board should be independent of the Board’s supervision and review. To this end, the General Counsel is appointed by the President, with the advice and consent of the Senate, and is the “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints... and in respect of the prosecution of such complaints before the Board.” 29 U. S. C. § 153(d).
The methods and procedures for the resolution of unfair labor practice charges are set out in statutes and in regulations promulgated by the Board pursuant to congressional authority. §156. A union, employer, or employee may bring an unfair labor practice charge to a regional office. Until such a charge is brought, the Board may take no enforcement action. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 156 (1975). Once a charge is brought and investigated, the regional director may, in his discretion, dismiss it. Should this occur, the charging party may appeal to the General Counsel, but not to the Board. 29 CFR § 101.6 (1987). Alternatively, the regional director may enter into an “informal settlement” agreement with the charged party. Such an agreement provides that the charged party will take or refrain from taking certain action, in return for which the regional director agrees not to file a complaint. If the charging party refuses to consent to this informal agreement, it may appeal to the General Counsel, but again, there is no provision for review by the Board. § 101.7.
If the regional director concludes that the charges have merit, and if no informal settlement is reached, he may issue a complaint. Once a complaint issues, it may be disposed of by withdrawal before hearing, settlement, or formal adjudication.
The regional director is authorized to withdraw a complaint on his own motion at any time before the hearing. Such a withdrawal may be appealed to the General Counsel, but no Board review is available.
If the complaint is settled before the hearing, the disposition may take one of several forms. “Formal settlement” requires Board approval and is accompanied by the charged party’s agreement to a remedial Board order and usually consent to the entry of an enforcement order in the court of appeals. § 101.9(b)(1). “Informal settlement” is similar to the precomplaint settlement already discussed. The only difference is that rather than refraining from filing a complaint, the regional director dismisses the complaint without prejudice to reinstatement should the charged party not fulfill its part of the agreement. § 101.9(b)(2).
Because a Board order is part of all formal settlements, Board approval is required before such an agreement may be executed. The applicable regulations expressly allow an opportunity for a nonconsenting party to appeal to the General Counsel, and from there to the Board. §§ 101.9(c)(1) and (2). Ultimately, judicial review of the Board order is available. 29 U. S. C. § 160(f). If the prehearing settlement is informal, an appeal is permitted to the General Counsel by a nonjoining party, but there is no provision for Board review. 29 CFR § 101.9(c)(3) (1987).
Once the hearing on the complaint begins, the Board’s regulations do not permit the General Counsel to enter into an unreviewable settlement agreement, even if it is “informal.” Rather, a nonconsenting party may challenge the settlement before the administrative law judge, and an appeal is available from the judge’s determination to the Board. Judicial review is authorized from the Board’s decision. 29 U. S. C. § 160(f).
Finally, the complaint may be disposed of by formal adjudication. The procedures for such determinations are provided by statute. Once a complaint issues, the charged party has the right to answer and the right to a hearing. If the Board finds, based on a preponderance of the testimony, that the charged party engaged in an unfair labor practice, it is empowered to issue a cease-and-desist order and other appropriate relief. Conversely, it must dismiss the complaint if it finds that no such practice occurred. Any party, including the charging party, aggrieved by an order of the Board granting or denying in whole or in part the relief sought may obtain review of the Board’s final order in the court of appeals. 29 U. S. C. § 160(f).
The dispute in the ease before us is a narrow one. The parties agree that the General Counsel’s approval of a determination not to file an unfair labor practice complaint is not subject to judicial review, whether or not it is the result of an informal settlement. See Sears, Roebuck & Co., 421 U. S., at 148; Vaca v. Sipes, 386 U. S. 171, 182 (1967). The parties also agree that any settlement that ultimately results in Board approval is subject to judicial review, even if the settlement is informal but entered into after the hearing commenced. The sole dispute is whether a postcomplaint, prehearing informal settlement is subject to judicial review.
B
We first address respondent’s argument that the regulations just described, which permit the General Counsel to determine the validity of a postcomplaint informal settlement, but do not provide for an appeal to the Board, are inconsistent with the NLRA. Essentially, this is an argument that respondent was entitled to a Board order subject to judicial review under 29 U. S. C. § 160(f).
We review the validity of the relevant regulations, promulgated pursuant to congressional authority, under the standards prescribed in INS v. Cardoza-Fonseca, 480 U. S. 421 (1987). On a pure question of statutory construction, our first job is to try to determine congressional intent, using “traditional tools of statutory construction.” If we can do so, then that interpretation must be given effect, and the regulations at issue must be fully consistent with it. Id., at 446-448. See also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843, and n. 9 (1984). However, where “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id., at 843. Under this principle, we have traditionally accorded the Board deference with regard to its interpretation of the NLRA as long as its interpretation is rational and consistent with the statute. See, e. g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987); Ford Motor Co. v. NLRB, 441 U. S. 488, 495, 497 (1979); Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978).
The words, structure, and history of the LMRA amendments to the NLRA clearly reveal that Congress intended to differentiate between the General Counsel’s and the Board’s “final authority” along a prosecutorial versus adjudicatory line. Section 3(d) of the NLRA provides that the General Counsel has “final authority” regarding the filing, investigation, and “prosecution” of unfair labor practice complaints. Conversely, when the authority of the Board is discussed (with regard to unfair labor practice complaints), it is in the context of the adjudication of complaints. Specifically, § 10 of the Act refers to the Board and the procedures it must follow to decide unfair labor practice cases.
The history of the LMRA also reflects this dichotomy. The House Conference Report on the LMRA states: “The conference agreement does not make provision for an independent agency to exercise the investigating and prosecuting functions under the act, but does provide that there shall be a General Counsel of the Board... [who] is to have the final authority to act in the name of, but independently of any direction, control, or review by, the Board in respect of the investigation of charges and the issuance of complaints of unfair labor practices, and in respect of the prosecution of such complaints before the Board.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 37 (1947) (emphasis added). Similarly, a summary submitted to the Senate detailing the Conference Committee compromise reads: “Further [the LMRA] recognizes the principle of separating judicial and prosecuting functions without going to the extent of establishing a completely independent agency. It accomplishes separation of functions within the framework of the existing agency by establishing a new statutory office, that is, a general counsel of the Board....” 93 Cong. Rec. 6442 (1947) (emphasis added). The legislative debates further support this division. See, e. g., id., at 3423-3424 (1947) (remarks of Rep. Hartley); id., at 6383 (remarks of Rep. Owens). Finally, the contemporaneous agency interpretation of the LMRA emphasized the prosecutorial/adjudicatory dichotomy. See 13 Fed. Reg. 654 (1948).
In light of the foregoing, the general congressional framework, dividing the final authority of the General Counsel and the Board along a prosecutorial and adjudicatory line, is easy to discern. Some agency decisions can be said with certainty to fall on one side or the other of this line. For example, as already discussed, decisions whether to file a complaint are prosecutorial. In contrast, the resolution of contested unfair labor practice cases is adjudicatory. But between these extremes are cases that might fairly be said to fall on either side of the division. Our task, under Cardoza-Fonseca and Chevron, is not judicially to categorize each agency determination, but rather to decide whether the agency’s regulatory placement is permissible.
Respondent would have us hold that after a complaint is filed all dispositions can only be deemed adjudicatory. It is true that the filing of a complaint is the necessary first step to trigger the Board’s adjudicatory authority. However, until a hearing is held the Board has taken no action; no adjudication has yet taken place. We hold that it is a reasonable construction of the NLRA to find that until the hearing begins, settlement or dismissal determinations are prosecutorial.
Moreover, we fail to see why the General Counsel should have the concededly unreviewable discretion to file a com-'plaint, but not the same discretion to withdraw the complaint before hearing if further investigation discloses that the case is too weak to prosecute. See International Assn. of Machinists & Aerospace Workers v. Lubbers, 681 F. 2d 598, 604 (CA9 1982), cert. denied, 459 U. S. 1201 (1983); George Banta Co. v. NLRB, 626 F. 2d 354, 356-357 (CA4 1980), cert. denied, 449 U. S. 1080 (1981); Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. NLRB, 339 F. 2d 795, 799 (CA2 1964); cf. Cuyahoga Valley R. Co. v. Transportation Union, 474 U. S. 3 (1985) (the Secretary of Labor’s decision to dismiss an Occupational Safety and Health Act complaint is not subject to review by the Occupational Safety and Health Review Commission). The General Counsel’s unreviewable discretion to file and withdraw a complaint, in turn, logically supports a reading that he or she must also have final authority to dismiss a complaint in favor of an informal settlement, at least before a hearing begins.
But respondent contends that the LMRA’s legislative history makes clear Congress’ understanding that the Board would review all dismissals once a complaint is filed. Our examination of the legislative history discloses no such support for respondent’s argument. Indeed, we find that the legislative history supports petitioners’ position.
Respondent asserts that at the time the LMRA was passed, in 1947, the practice of the Board was to delegate to an “anonymous committee” the resolution of appeals from determinations by regional directors not to file complaints. Respondent further argues that once a complaint was filed, any final disposition was subject to Board approval. The conclusion respondent would have us draw from this is that Congress intended only to replace the “anonymous committee” with the General Counsel, and that the authority that the Board had retained prior to 1947 survived and was carried forward in the LMRA amendments to the NLRA.
This inference is too strained to withstand scrutiny. It is clear of course that Congress intended to place final authority regarding the filing of complaints in the General Counsel. But it is equally clear that Congress intended the scope of the General Counsel’s authority to be far broader than respondent suggests. Congress intended that the General Counsel should not only resolve appeals regarding the filing of complaints, but that he or she should be the “final authority” concerning the “prosecution” of complaints as well, a function not performed by the “anonymous committee” prior to 1947. We repeat that Congress intended to create an officer independent of the Board to handle prosecutions, not merely the filing of complaints.
Moreover, the silence of the legislative history regarding settlements does not suggest that Congress was carrying forward the prior settlement structure. For Congress was aware that settlements constitute the “lifeblood” of the administrative process, especially in labor relations. Given their importance, we cannot attribute to Congress an intention to deny the Board the usual flexibility accorded an agency in interpreting its authorizing statute and in developing new regulations to meet changing needs.
In short, the Board’s regulations are consistent with amended NLRA. Respondent was not entitled to Board review of the settlement.
C
Alternatively, respondent argues that because the General Counsel acts “on behalf of the Board” his or her final determinations are reviewable under the NLRA as orders “of the Board.” We find this argument, too, unpersuasive.
The plain language cited by respondent reflects that the General Counsel acts “on behalf of ” the Board. 29 U. S. C. § 153(d). Clearly this is not the same as an act “of the Board” itself. 29 U. S. C. § 160(f).
Further, the structure of the Act, far from supporting respondent, leads inescapably to the conclusion that Congress distinguished orders of the General Counsel from Board orders. The statute describing the organization of the agency, in which the “on behalf of the Board” language appears, differentiates between the two independent branches. 29 U. S. C. §153. The structure of §10 of the NLRA (29 U. S. C. § 160) emphasizes the distinction. Section 10 specifies the procedure for adjudicating unfair labor practice charges. Subsection 10(f) provides that final decisions “of the Board” shall be judicially reviewable, and, in the context of the entire section, discloses Congress’ decision to authorize review of adjudications, not of prosecutions. Fairly read, this may encompass any Board adjudication resolving an unfair labor practice complaint, whether by final order, consent decree, or settlement. But it plainly cannot be read to provide for judicial review of the General Counsel’s prosecutorial function.
The history of the Act confirms the distinction between orders of the General Counsel and Board orders. In the House bill, the General Counsel was styled the “Administrator of the National Labor Relations Act,” and headed a separate agency. The Conference Committee decided to place the General Counsel within the agency, but to make the office independent of the Board’s authority. The Committee added the language “on behalf of the Board” to make it clear that the General Counsel acted within the agency, not to imply that the acts of the General Counsel would be considered acts of the Board.
Finally, since respondent concedes that the General Counsel’s decision not to file a complaint is not reviewable under § 10(f), we perceive no merit or logic in the argument that a settlement decision of the General Counsel may be.
Again, the language, structure, and history of the NLRA, as amended, clearly differentiate between “prosecutorial” determinations, to be made solely by the General Counsel and which are not subject to review under the Act, and “adjudicatory” decisions, to be made by the Board and which are subject to judicial review. As the decision in this case was “prosecutorial,” it cannot be judicially reviewed under the NLRA.
Ill
Respondent argues that if the NLRA provides no judicial review of “prosecutorial” determinations, they may be reviewed under the Administrative Procedure Act (APA) as final agency actions “for which there is no other adequate remedy in a court.” 5 U. S. C. §704. It is true that the General Counsel’s decision was a “final” action, and that there is no other adequate remedy in a court. But review under the APA is unavailable of actions specified in 5 U. S. C. § 701(a), that is, (1) where “statutes preclude judicial review”; or (2) where “agency action is committed to agency discretion by law.” Subsection (1) applies in this case.
The statutory preclusion of judicial review must be demonstrated clearly and convincingly. Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 462 (1979); Dunlop v. Bachowski, 421 U. S. 560, 567 (1975). In the absence here of statutory language expressly precluding APA review, the Court must examine the structure and history of the statute to determine whether the requisite congressional intent to bar judicial review is clearly established.
The NLRA leaves no doubt that it is meant to be, and is, a comprehensive statute concerning the disposition and review of the merits of unfair labor practice charges. In particular, § 10 exhaustively sets out the stages through which such charges may pass, from the filing of a complaint, to a Board determination, and to judicial enforcement and review. Moreover, in the entire NLRA, judicial review is expressly provided only in respect of Board orders. We have already determined, supra, at 130, that Congress purposely excluded prosecutorial decisions from this review. We proceed to demonstrate why it would be illogical in the extreme to hold that Congress did so only to permit review under the APA.
To allow judicial review through the APA of the General Counsel’s settlement determinations would run directly counter to the structure of the NLRA. Appeals from final orders or dispositions of the Board are expressly directed to the courts of appeals. Respondent nevertheless urges that the statute should be read to allow an APA suit, brought in the district court, to review final agency orders that are not adjudications. Such review would involve lengthy judicial proceedings in precisely the area where Congress was convinced that speed of resolution is most necessary. This case provides a good illustration of what Congress set out to avoid. Charges were filed by respondent in August 1984. By January 1985 the settlement had been reached and all administrative review was exhausted. However, the court proceedings took almost 15 months.
This sort of delay, unavoidable in the judicial setting, is untenable in the settlement context, for until the court ruled the parties could not know whether their settlement agreement was valid. In future cases, a charged party would have an incentive not to carry out its part of the bargain while judicial review is pending for fear that the settlement might be invalidated. Obviously, the willingness of charged parties to resolve unfair labor practice charges quickly and expeditiously by way of an informal settlement after a complaint is filed would be severely constrained if APA review were allowed.
The resulting consequences for the agency and the enforcement of the Act could be most serious. In 1983 almost one-third of all unfair labor practice charges brought (excluding those terminated through voluntary withdrawal by the charging party or outright dismissal of the charges) were disposed of by way of an informal settlement reached after a complaint was filed, but before a hearing began. This hazard to the functioning of the “lifeblood” of the administrative process could certainly not have been the congressional intention.
Finally, APA review of these settlements would inevitably require the federal courts, in the first adjudicatory instance, to examine the merits of unfair labor practice charges. However, Congress has made plain its unequivocal desire that, absent statutory direction to the contrary, such examinations be made first by the Board, or not at all. At least in the context of this statute, we are left with no doubt that Congress intended the right of judicial review on the merits of an unfair labor practice charge to be had only through the express provisions of the NLRA.
Given the comprehensive nature of the NLRA with regard to unfair labor practice charges, and the absurd results of allowing an APA action to be brought where there is no judicial review provided in the Act, we conclude that the exception defined in 5 U. S. C. § 701(a)(1) bars review here.
IV
We conclude that the Court of Appeals had no jurisdiction to entertain this action under either the NLRA or the APA. Consequently, we need not determine whether an evidentiary hearing should have been ordered. We reverse the judgment of the Court of Appeals and remand with instructions to dismiss the cause for want of subject-matter jurisdiction.
It is so ordered.
The agreement provided that Vic’s and Charley Brothers (1) would not assist the Steelworkers’ organizing efforts or interrogate employees as to their union sympathies; (2) would not recognize the Steelworkers or give effect to the collective-bargaining agreement unless the Steelworkers became the certified employee representative; (3) would not restrain or coerce the employees; and (4) would reimburse the employees for any dues already paid to the Steelworkers. The agreement also stated that the Steelworkers (1) would not accept assistance from Vic’s or Charley Brothers; (2) would not give effect to the collective-bargaining agreement unless they became the certified employee representative; (3) would not restrain or coerce the employees in any way; and (4) would mail a notice of the agreement to all employees. It was further agreed that a notice would be posted for 60 days at the store outlining the provisions of the settlement agreement. However, the agreement did not require an admission by any party that an unfair labor practice had actually occurred, nor did it provide for a formal Board order or consent decree. Finally, the Regional Director agreed to dismiss the complaint without prejudice to reinstatement should any of the charged parties not comply with the agreement.
First, respondent argued that it did not have an adequate opportunity to reach a settlement through amicable adjustment. Second, respondent contended that the 60-day posting period was too short to undo the damage already done by the improper representation; in other words respondent maintained that a fair election could not be held with so brief a posting period. Third, respondent requested special access to the store premises to enable it to compete in its organization efforts with the Steelworkers, who allegedly already had access to the store. Fourth, respondent objected to the lack of a provision for either a formal Board order or consent decree, or an admission that an unfair labor practice had occurred. Finally, respondent contended that the notice itself was ambiguous. The Regional Director amended the notice to meet respondent’s concerns, but otherwise refused to alter the terms of the proposed settlement.
Leeds & Northrup Co. v. NLRB, 357 F. 2d 527 (CA3 1966).
Compare 788 F. 2d 178 (CA3 1986) (case below) (finding that there is jurisdiction in the courts of appeals), and International Ladies’ Garment Workers Union v. NLRB, 163 U. S. App. D. C. 263, 501 F. 2d 823 (1974) (same), with Jackman v. NLRB, 784 F. 2d 759 (CA6 1986) (finding no jurisdiction); cf. Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. NLRB, 339 F. 2d 795 (CA2 1964) (no hearing before the Board concerning settlement entered into by General Counsel).
See, e. g., 93 Cong. Ree. 6383 (1947) (remarks of Rep. Owens regarding the importance of the separation of powers within the agency); id,., at 6869 (analysis of Sen. Taft).
H. R. 3020, 80th Cong., 1st Sess., §101 (1947), amending §4 of the NLRA, as sent to the Senate.
LMRA, 61 Stat. 139, § 101, amending § 3 of the NLRA. This amendment added a new subsection (d), providing in pertinent part:
“There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board... shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.” 29 U. S. C. § 153(d).
Title 29 CFR § 101.6 (1987) states:
“If the complainant refuses to withdraw the charge as recommended, the Regional Director dismisses the charge. The Regional Director thereupon informs the parties of this section [sic, probably should be ‘action’], together with a simple statement of the grounds therefor, and the complainant’s right of appeal to the General Counsel in Washington, D. C., within 14 days____”
Section 101.7 provides:
"Before any complaint is issued or other formal action taken, the Regional Director affords an opportunity to all parties for the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment, except where time, the nature of the proceeding, and the public interest do not permit.... These agreements, which are subject to the approval of the Regional Director, provide for an appeal to the General Counsel, as described in § 101.6, by a complainant who will not join in a settlement or adjustment deemed adequate by the Regional Director....”
Section 102.18 provides: “Any such complaint may be withdrawn before the hearing by the Regional Director on his own motion.” An appeal to the General Counsel is permitted pursuant to § 102.19.
Section 101.9 concerns settlements made after a complaint is filed. Subsection (b)(1), states:
“After the issuance of a complaint, the Agency favors a formal settlement agreement, which is subject to the approval of the Board in Washington, DC. In such an agreement, the parties agree to waive their right to hearing and agree further that the Board may issue an order requiring the respondent to take action appropriate to the terms of the settlement. Ordinarily the formal settlement agreement also contains the respondent’s consent to the Board’s application for the entry of a judgment by the appropriate circuit court of appeals enforcing the Board’s order.”
Section 101.9(b)(2) states:
“In some cases, however, the Regional Director, who has authority to withdraw the complaint before the hearing § 102.18) [sic], may conclude that an informal settlement agreement of the type described in § 101.7 is appropriate. Such agreement is not subject to approval by the Board and does not provide for a Board order. It provides for the withdrawal of the complaint.”
Sections 101.9(c)(1) and (2) read:
“(1) If after issuance of complaint but before opening of the hearing, the charging party will not join in a settlement tentatively agreed upon by the Regional Director, the respondent, and any other parties whose consent may be required, the Regional Director serves a copy of the proposed settlement agreement on the charging party with a brief written statement of the reasons for proposing its approval....
“(2) If the settlement agreement approved by the Regional Director is a formal one, providing for the entry of a Board order, the settlement agreement... [is] submitted to Washington, D. C., where [it is] reviewed by the General Counsel. If the General Counsel decides to approve the settlement agreement, the charging party is so informed and the agreement and accompanying documents are submitted to the Board, upon whose approval the settlement is contingent....”
Section 101.9(c)(3) states: “If the settlement agreement approved by the Regional Director is an informal one, providing for the withdrawal of the complaint, the charging party may appeal the Regional Director’s action to the General Counsel....”
Section 101.9(d) provides in relevant part:
“(1) If the settlement occurs after the opening of the hearing and before issuance of the administrative law judge’s decision and there is... [a settlement proposal and if] any party will not join in the settlement agreed to by the other parties, the administrative law judge will give such party an opportunity to state on the record or in writing its reasons for opposing the settlement.
“(2) If the administrative law judge decides to accept or reject the proposed settlement, any party aggrieved by such ruling may ask for leave to appeal to the Board as provided in § 102.26.”
(Section 102.26 provides for interlocutory appeals to the Board, which are discretionary. Petitioners have not suggested that an order of the administrative law judge accepting a settlement would not always be subject to Board review.)
Section 10(c) of the NLRA, as set forth in 29 U. S. C. § 160(c), reads in relevant part:
“If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue... an order requiring such person to cease and des
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond2_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Amelia O. BONSUKAN, Petitioner, Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE and Patrick F. Coomey, District Director, INS, Boston, Massachusetts, Respondents, Appellees.
No. 76-1474.
United States Court of Appeals, First Circuit.
Argued March 7, 1977.
Decided April 25, 1977.
As Modified May 18, 1977.
Basil S. Yanakakis, Boston, Mass., on brief for petitioner, appellant.
Rex L. Young, Atty., Dept, of Justice, Washington, D. C., with whom Philip Wilens, Chief, Government Regulations and Labor Section, Crim. Div., and James P. Morris, Atty., Dept, of Justice, Washington, D. C., were on brief, for respondents, appellees.
Before MOORE, ALDRICH and CAMPBELL, Circuit Judges.
Of the Second Circuit, sitting by designation.
ALDRICH, Senior Circuit Judge.
This is a petition, pursuant to 8 U.S.C. § 1105a, to review a decision of the Board of Immigration Appeals denying petitioner’s motion to reopen proceedings which had resulted in an order of deportation. Petitioner, a Philippine national, entered the country in 1968 as a nonimmigrant exchange visitor, 8 U.S.C. § 1101(a)(15)(J), authorized to remain for two years. She stayed beyond that time, but respondents did not press her, apparently because an application for a sixth preference visa, 8 U.S.C. § 1153(a)(6), was approved and she was waiting for a visa number. Thereafter, in 1974, it came to respondents’ attention that petitioner was no longer employed by the hospital which had filed her sixth preference petition, and deportation proceedings were initiated.
Petitioner attended the deportation hearing, with counsel, but obtained a three weeks continuance for consultation. On the date that had been set petitioner reappeared, but without counsel, stating that she had been unable to locate him. She was offered a further continuance, but, after an off-the-record consultation with someone (other than the immigration judge) she said she would proceed without counsel. At the hearing she then conceded her deportability, and waived appeal. Pausing here, if this was, in fact, an overconcession, it seems extraordinary that in the three weeks continuance granted for conferring with counsel he had left her with the opinion that she had no defense.
Until by reply brief in this court counsel never explained his absence from the hearing. Even if, as now contended on a petition to this court for modification of our opinion, he did inform her, and requested her to inform the immigration judge, she did not do so, though given the opportunity. It was improper procedure, particularly where counsel had obtained one continuance to a date certain, merely to tell his client to appear at the hearing and request another, especially, as is now suggested, she had inadequate command of English. In any event, his excuse cannot justify the present contention that this irretrievably lost petitioner her right of appeal, which, in turn, lost her her right to review in this court the correctness of the immigration judge’s initial order of deportation. Chung Chaw Wa v. INS, 1 Cir., 1969, 407 F.2d 854, cf. Rosa v. INS, 1 Cir., 1971, 440 F.2d 100; Gena v. INS, 5 Cir., 1970, 424 F.2d 227. Rather than seeking, at an early opportunity, to right whatever wrong his client could be thought to have suffered because of his absence from the hearing, counsel waited five months and then filed a motion for reconsideration that contained no mention of what is now argued to be an unconstitutional denial of counsel, and an “improperly held hearing.” Quite apart from the fact that petitioner appears to be an intelligent woman, who freely refused an offer for a further continuance, to claim now that she was prejudiced by lack of counsel is altogether too late.
Our review, accordingly, is limited to the question whether to deny the petition to reopen and grant a suspension of deportation pursuant to 8 U.S.C. § 1254, was an abuse of discretion. The Board of Immigration Appeals ruled that petitioner had not made a sufficient showing of “extreme hardship,” 8 U.S.C. § 1254(a)(1), and, in any event, was ineligible for suspension because she entered the country as an exchange visitor, 8 U.S.C. § 1254(f). We find no abuse on either score. The ruling on hardship was well within the Board’s discretion. Pelaez v. INS, 5 Cir., 1975, 513 F.2d 303, cert. denied, 423 U.S. 892, 96 S.Ct. 190, 36 L.Ed.2d 124; Kasravi v. INS, 9 Cir., 1968, 400 F.2d 675. Petitioner’s claim that the granting of her sixth preference petition “took her out of the exchange visitor status,” and hence removed the bar of section 1254(f), is offered without any support in the statute, regulations, or cases. Nor do we find any abuse in the Board’s failure to credit petitioner’s claim that she would be subject to political persecution if deported to the Philippines. Petitioner offered no support for this claim in the proceedings below. Her counsel now seeks to excuse this failure with the observation that “the threat of political persecution is difficult to prove,” and attempts to establish the case by submission of an affidavit in this court. It is elementary that this attempt comes too late, see 8 U.S.C. § 1105a(a)(4), even were we impressed by the showing, which we are not.
This is a wholly meritless petition, and it is only with reluctance that we do not assess respondents’ attorney’s fees as costs, NLRB v. Smith & Wesson, 1 Cir., 1970, 424 F.2d 1072, and charge them to petitioner’s counsel personally, 28 U.S.C. § 1927.
Petition dismissed.
. Petitioner had changed jobs, and another sixth preference petition was filed on her behalf by her new employer, which, under the regulations, 8 C.F.R. § 204.6, lost her her place in line and required her to begin anew to wait for a visa number.
. Counsel says in his extensive brief that he raised this, and the political matter, post, in his brief before the Board of Immigration Appeals on the appeal from the denial of reconsideration. Even if true, it is elemental that such matters, particularly factual matters, should have been made before the immigration judge, and could not be raised for the first time on appeal.
. We need not decide whether, under the 1970 amendment to 8 U.S.C. § 1182(e), petitioner is subject to the two year foreign residence requirement before she can obtain a visa, a matter which counsel sought to raise for the first time at oral argument, since section 1254(f) explicitly bars the remedy of suspension of deportation to any exchange visitor. Even if petitioner is not subject to the two year requirement, we could not consider it an abuse for respondents to decline, in their discretion, to allow petitioner to remain in the United States while awaiting a visa. Bowes v. INS, 9 Cir., 1971, 443 F.2d 30; United States ex rel. Fen v. Esperdy, 2 Cir., 1970, 423 F.2d 6.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
MORRIS v. PREFABRICATION ENGINEERING CO. et al. PREFABRICATION ENGINEERING CO. et al. v. MORRIS.
No. 12772.
United States Court of Appeals Fifth Circuit.
April 7, 1950.
Harry L. Duránt, Miami, Fla., N. J. Durant, Miami, Fla., for appellants and cross-appellee.
Thos. McE. Johnston, Miami, Fla,, for appellee and cross-appellants.
Before HUTCHESON, Chief Judge, and WALLER and RUSSELL, Circuit Judges.
WALLER, Circuit Judge.
This action was brought to rescind a contract and to recover a deposit of $4,000' paid as an advance on the purchase price of certain wedges and bolts under that contract. The lower Court on a former trial found for the plaintiff and entered a judgment for $4,000, less the value ($20.25) of 675 bolts and wedges delivered by the defendant and admittedly used by the plaintiff.
On appeal this Court sustained the findings of the trial Court that time was of the essence of the contract; that defendant had failed to ship within the time provided for in the contract; and that plaintiff had a right to, and did, rescind in July, 1943. Our opinion stated, however, that it not being shown that the bolts and wedges which had been shipped prior to the rescission were of no intrinsic value, plaintiff should have returned the goods or offered to return them, or, more properly, that the lower Court was in error in not requiring an accounting for all the bolts and wedges shipped prior to the date of rescission. We, therefore, reversed and remanded for proceedings not inconsistent with our opinion. Morris v. Prefabrication Engineering Co., 5 Cir., 160 F.2d 779.
The only question remaining was the amount of credit to be given to the defendant for the 42,180 bolts and wedges shipped prior to the rescission, the answer to which is dependent upon whether, because of the lateness of their delivery, these bolts and wedges had only a salvage value to plaintiff, or whether the unit prices of such bolts and wedges should govern.
The record on the prior trial reflected the total quantity of bolts and wedges shipped before rescission, as well as the unit price of the bolts, but the unit price of the wedges was not shown. On remand, plaintiff moved in the Court below for a summary judgment in the amount of $3,954.-50, predicated upon the allowance of the negligible salvage value of the bolts and wedges or, in the alternative, for a summary judgment for $2,734.60, predicated upon the allowance of the full unit price of the bolts and wedges delivered before rescission. Plaintiff attached to its motion an affidavit of a Mr. Johnson by which it sought to show the salvage value of the wedges to be $5 and — in the alternative— the unit value to be 30, in the event salvage value were not adopted.
The Court granted summary judgment for the lesser sum of $2,734.60, predicated upon the allowance of the full unit price for the wedges and bolts delivered before rescission. The defendant appealed from the entry of such judgment and the plaintiff cross-appealed, urging that the judgment should have been for the greater sum of $3,954.50.
The defendant contends that the alternative motion for summary judgment by the plaintiff in the sum of $2,734.60 constituted an admission, so to speak, by the plaintiff that the amount in controversy was not in excess of $3,000, by virtue whereof the lower Court had no jurisdiction.
We hold this assignment not to be well taken. At the time of the commencement of the action the requisite jurisdictional amount was involved, and the fact that the plaintiff alternatively reduced the amount of its demand in its motion for summary judgment in conformity to the law applied by this Court in the previous appeal would not, ipso facto, divest the Court of jurisdiction where, as here the plaintiff, in good faith, claimed an amount in excess of $3,000, with legal interest and costs, even though the amount awarded was less than the required jurisdictional amount. Service Finance Corporation v. Coppard, 5 Cir., 116 F.2d 488.
The defendant next insists that the motion for summary judgment should not have been granted because there was a genuine issue as to amount of damages and that he was deprived of the right to a trial and the introduction of competent evidence as to the true value of the articles in question. He also urges that the entry of the summary judgment was erroneous because there was nothing in the affidavit of Mr. Johnson to show that he was qualified to give an opinion as to the value of the articles involved.
We cannot agree with the defendant. We think a summary judgment was proper in this instance and served the very purpose for which Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., was intended in putting an end to vexatious and interminable litigation when no- material fact was at issue. The judgment for the lesser amount, sought in the alternative, could not in any wise prove harmful or detrimental to the defendant inasmuch as the record shows that the wedges could not have cost more than the bolts, and that the bolts, according to defendant, had a unit price of 30. It was this maximum unit price of 30 for the wedges that was accepted by the Court as presented by the plaintiffs affidavit. We fail to discern any right in the defendant to receive in rescission of his contract a price greater than he would have been entitled to had he fulfilled his contract. Moreover, defendant is not advantageously situated to complain of the lower Court’s acceptance of the unit price of the wedges as set out by the plaintiff’s affidavit since he failed to file a counter affidavit or to avail himself of subsection (f) of Rule 56 intended to serve, and capable of serving, those in the position in which he deems himself. Board of Public Instruction v. Meredith, 5 Cir., 119 F.2d 712; U. S. v. Freeman, D.C. Mass., 37 F. Supp. 720; Fletcher v. Krise, 73 App.D.C. 266, 120 F.2d 809.
The plaintiff, cross-appellant, complains of the entry of the summary judgment for the alternative and lesser amount on the ground that only the negligible salvage value should have been allowed as a deduction to the defendant, but we think that in the absence of a seasonable return, or an effort to- so return, the bolts and wedges, the contention is without merit.
The judgment of the District Court is affirmed both as to the appeal and the cross-appeal.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Hiram Lee BAUMAN, Pedro Talamas, and John Cary, Defendants-Appellants.
No. 89-2176.
United States Court of Appeals, Fifth Circuit.
Oct. 20, 1989.
Beth McGregor (court-appointed), Bailey & McGregor, Houston, Tex., for Bauman.
Frank A. Rubino, Coconut Grove, Fla., for Talamas.
Kent A. Schaffer, Houston, Tex., for Cary.
Scott Bankie, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Before DAVIS and SMITH, Circuit Judges, and LITTLE, District Judge.
. District Judge of the Western District of Louisiana, sitting by designation.
JERRY E. SMITH, Circuit Judge:
Three defendants seek dismissal of an indictment pending against them after the trial court declared a mistrial. Since all defendants were once put in jeopardy, we must decide whether the fifth amendment to the Constitution bars reprosecution under the facts of this case.
Upon review of the entire record, we conclude that the trial court did not exceed its discretion in finding “manifest necessity” for a mistrial. Accordingly, the double jeopardy clause does not constitutionally bar reprosecution over the defendants’ objection, and hence we affirm. A retrial may commence with respect to all defendants.
I.
The appellants and several confederates were indicted on April 15, 1987, for a variety of drug-related conspiracy, distribution, and importation offenses. The events surrounding the trial were well publicized, described by the Houston media as the largest drug trial in the city’s history. The district judge decided to try all defendants together and set a trial date well in ad-vanee to avoid scheduling conflicts commonly associated with trying numerous co-defendants.
Defendant Hiram Lee Bauman, himself an attorney, was provided court-appointed counsel. Problems developed between Bauman and his attorney, however, leading to substitution of appointed counsel on two separate occasions. The district court permitted Bauman to retain attorney Randy Holzapple, his third appointed counsel, several weeks before trial, with the understanding that the trial date of January 9, 1989, would not be continued. Bauman accepted this condition for substitution of counsel.
All defendants appeared in court on the trial date. Because of a so-called “scheduling conflict,” however, Holzapple failed to appear. The district court believed, based upon these events, that Bauman had retained Holzapple with full knowledge of the attorney’s scheduling problem in order to stall the commencement of the trial. The district court offered Bauman the immediate services of his second court-appointed attorney, who was present in court for unrelated reasons, so that the trial could proceed. Bauman rejected the court’s invitation and moved that either the case be continued or he be severed.
Sensing bad faith, the district court interpreted Bauman’s actions as a calculated attempt to disrupt the trial. Accordingly, the court rejected Bauman’s motion for a continuance or a severance and proceeded with the trial in the absence of Bauman’s defense counsel, citing this court’s decision in United States v. Mitchell. Bauman vehemently objected to the proceedings, believing himself unrepresented in violation of the sixth amendment. He raised the objection at every available opportunity, even though the court noted his objection for purposes of appeal and requested Bau-man’s cooperation.
A jury was empaneled and sworn, and the government began to present witnesses. Bauman, however, proved to be a disruptive defendant. Against the instructions of the court, he repeatedly objected to the lack of counsel before the jury and saw fit to interrupt the examination of government witnesses by seeking the court’s permission to leave the courtroom.
Two days after trial began, Bauman moved for a mistrial, continuance, or severance based upon a newly-submitted affidavit from Holzapple stating that Bauman was unaware of his scheduling conflict. That same morning, the court received information that attorney Campbell, counsel for two other co-defendants, had been arrested in an unrelated case on charges of conspiring to bribe a justice of the peace and aggravated perjury.
The judge decided to meet with the defendants’ attorneys to address the separate problems associated with Bauman’s lack of counsel and Campbell’s arrest. The defendants offered the court no uniform curative measure for any prejudice which they may have suffered: Campbell moved for a mistrial with respect to his two clients; several other co-defendants sought a mistrial; Bau-man desired either a continuance, severance, or “as a last resort,” a mistrial; defendants Talamas and Cary lobbied for a severance but opposed a mistrial. The government, not surprisingly, wanted to try all defendants together and thus sought a mistrial to correct any sixth-amendment error or incurable prejudice visited upon the jury.
Before deciding upon a course of action, the district court then interviewed the jurors to assess any possible prejudicial exposure to news coverage. Prudently, the court made no direct reference to Campbell’s arrest so as not to exacerbate any problem with jury bias. At this point in the proceedings, three jurors admitted to hearing media references to the trial, but they apparently had not paid attention to any details.
After interviewing the attorneys and jurors, and over the objection of Talamas and Cary, the judge declared a mistrial sua sponte as to all defendants. An order, coupled with more comprehensive written findings, was subsequently entered on January 26,1989. The court found, inter alia, that Holzapple had known he had a scheduling conflict when he accepted representation of Bauman and had failed, in bad faith, to notify the court and to attend the trial on behalf of Bauman. The court was also concerned that past publicity, coupled with expected future media coverage of Campbell’s arrest, would incurably prejudice all defendants.
After declaration of the mistrial, defendants Bauman, Talamas, and Cary unsuccessfully moved to dismiss the indictment on the theory that reprosecution is constitutionally barred. A retrial of all defendants has been stayed pending disposition of this interlocutory appeal.
II.
A.
The double jeopardy clause protects a defendant’s “valued right to have his trial completed by a particular tribunal.” Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978). It also bars abusive governmental conduct designed to harass a defendant through repetitive prosecution or undertaken for the purpose of increasing the likelihood of conviction.
However, the double jeopardy clause is not an absolute bar to reprosecution once the jury has been empaneled and sworn. A defendant may, for example, waive double jeopardy protection by consenting to a mistrial before a verdict is rendered. As noted in United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267 (1976), “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error” (citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)).
Without the defendant’s consent to a mistrial, reprosecution becomes more difficult. Nevertheless, a retrial following a sua sponte declaration of mistrial over a defendant’s objection is not prohibited under the fifth amendment where there exists “manifest necessity” for a mistrial. Id. 424 U.S. at 606-07, 96 S.Ct. at 1079. The “manifest necessity” exception, although narrow, frees the trial judge from the “Hobson’s choice” of either continuing with a trial that in fairness should be terminated, or declaring a mistrial after jeopardy attaches and reprosecution is barred. See, e.g., Cherry v. Director, State Bd. of Corrections, 635 F.2d 414, 419 (5th Cir. Jan. 1981) (en banc) (manifest necessity for mistrial exists where, for example, judge or juror cannot attend because of illness or death), cert. denied, 454 U.S. 840, 102 S.Ct. 150, 70 L.Ed.2d 124 (1981).
B.
For purposes of appellate review, the trial court’s finding of “manifest necessity” for a sua sponte declaration of mistrial is to be upheld if the court exercised “sound discretion” in making that determination. See Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835; Grandberry v. Bonner, 653 F.2d 1010, 1014 (5th Cir. Unit A Aug. 1981). Application of this standard requires appellate courts to give the judge’s mistrial order the “highest degree of respect,” as he is most familiar with the events that compromised the trial. The availability of alternatives less draconian than a mistrial does not necessarily preclude reprosecution, as reasonable judges may differ concerning proper curative measures. Grandberry, 653 F.2d at 1014; Cherry, 635 F.2d at 418-19.
Additionally, we are free to scrutinize the entire record and are not limited to only those findings made contemporaneously with the mistrial order. See Abdi, 744 F.2d at 1503. This plenary review of the record assists us in determining, as required by our prior decisions, whether the trial judge “carefully considered the alternatives and did not act in an abrupt, erratic or precipitate manner.” Grandberry, 653 F.2d at 1014.
III.
A.
The Supreme Court has said that the valued right to be tried before a particular tribunal “is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.” Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. However, because the valued right is so important, the government must show “manifest necessity” for any mistrial declared over a defendant’s objection. Id.; Baker v. Estelle, 711 F.2d 44, 47 (5th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984).
In Arizona v. Washington, the Supreme Court declined to define manifest necessity precisely or to enunciate rules of mechanical application. It offered limited guidance, saying only that the “high degree of necessity” mandated by the phrase can be found in a variety of circumstances. See 434 U.S. at 506-09, 98 S.Ct. at 830-32. Thus, the Court left the definition of the phrase deliberately ambiguous, affording the trial judge considerable discretion to declare a mistrial without immunizing a defendant from reprosecution.
The phrase “manifest necessity,” first used in double jeopardy jurisprudence in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), has been judicially refined" to such an extent that it is today somewhat misleading: It implies a greater burden on the government than is actually demanded to achieve a re-prosecution after a mistrial. As the Washington Court noted, “Indeed, it is manifest that the key word ‘necessity’ cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” 434 U.S. at 506, 98 S.Ct. at 831. Thus, manifest necessity, in modern legal jargon, is equivalent to “a high degree of necessity.”
B.
In the instant case, the court and defendants expressed considerable concern over “spillover prejudice” if the defendants were forced to associate with Campbell, recently arrested, and his clients. In addition, all parties agree that Bauman conducted himself in open court in a fashion that frustrated both the judge and the defendants in maintaining order at trial. The defendants feared that Bauman’s poor decorum before the jury would have a negative impact upon all of them.
It is apparent from the record that the trial court was concerned about the possibility of a sixth amendment error if the trial had proceeded in the absence of defense counsel for Bauman. The court at first believed that Bauman had sought deliberately to interrupt the progress of the trial by soliciting the absence of Holzapple when the trial date had been agreed to by all parties. However, Holzapple’s affidavit, if true, indicated that Bauman had not retained his services in bad faith in order to disrupt the trial.
Aside from problems with representation, the judge and the remaining defendants found Bauman’s interruptions and repetitious objections to be potentially prejudicial as to all defendants. This spillover prejudice was exacerbated by widespread news reports of Campbell’s arrest. The judge found that the risk of both past and future exposure — through news reports and jurors’ conversations with friends — was sufficient to merit a mistrial.
With little difficulty, we conclude that Bauman’s double jeopardy appeal is without merit in this case for the simple reason that he requested the mistrial. As noted previously, a motion by a defendant for a mistrial usually removes any barrier standing in the way of reprosecution under Dinitz. His argument that his motion for a mistrial was “a last resort” and that he really wanted a severance or a continuance is unpersuasive.
The double jeopardy defense asserted by Talamas and Cary, however, is not meritless, as they consistently objected to a mistrial. They remind us that they even agreed to stipulate to certain government evidence in order to avoid a mistrial as to them. Moreover, Talamas and Cary argue that United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), requires that the district court consider less drastic alternatives and, if possible, to choose a remedy of severance instead. They allege that the judge declared a complete mistrial because of selfish concerns for “judicial economy” in conducting a single trial, and that such considerations have no place in double jeopardy jurisprudence.
We agree with Talamas and Cary to the extent that they understand Jom to require the trial court methodically to consider alternatives to a mistrial. However, we reject their argument that the trial court must always agree to sever certain defendants if possible. As noted before, reasonable judges may differ on the proper curative measure, and appellate courts are not meant to second-guess the sound discretion of the trial judge in declaring a mistrial for juror prejudice when that judge is closest to the compromising events.
Moreover, we disagree with defendants’ suggestion that the trial judge was concerned solely with judicial efficiency when he terminated the trial. The record reflects that much more was involved. The trial judge expressed concern that bifurcated trials could prejudice subsequent proceedings because of the publicity surrounding this large-scale drug trial. He also feared incurable juror bias resulting from Bauman’s disruptions in front of the current panel. The future impact of Campbell’s arrest, about which the jurors were asked only indirectly, was also speculative and thus entitled to great deference.
It is evident to us that the trial court here did not act in an abrupt, erratic, or precipitate manner. He consulted with the counsel of all defendants: Most wanted a mistrial for their clients; all wanted a mistrial with respect to Bauman; no one wanted to be seen with Campbell; and Talamas and Cary wanted a severance only. The court also interviewed all the jurors to assess the extent of juror bias.
The court proceeded to consider the options of a continuance and severance. Contrary to the suggestion of the defendants, his findings concerning alternatives other than a mistrial need not be limited to those contemporaneously made with his mistrial order. In fact, such findings need not even be made expressly. See Abdi, 744 F.2d at 1503 (record need only reflect that alternatives were considered). Nevertheless, in this case the trial court did in fact enter additional findings, along with his written order, two weeks later. He concluded that a continuance would only expose the empaneled jurors, over the course of a month’s delay, to more prejudicial media influence. A severance was similarly rejected because of the fear of incurable prejudice on the part of the current panel, concerns for judicial economy and preservation of evidence, and the express consent of all but two of the defendants for a mistrial.
The fact that the judge’s subsequent written findings may have been inconsistent, in whole or in part, with earlier oral findings, as the defendants suggest, is a matter to be considered upon review. We recognize, however, that such changes may be attributable to the judge’s access to more information over time or his quiet reflection upon the unusual events that transpired before him here.
Contrary to what the defendants suggest, double jeopardy jurisprudence does not bar a judge’s reassessment of the impact of certain events. Unless we are convinced from our review of the record that the trial judge is belatedly searching for manifest necessity where none existed at the trial’s termination, we find no interest to be served by shielding criminal defendants from reprosecution because of a judge’s fortuitous choice of words. Thus, the proper analysis focuses upon the complete record and not upon isolated statements of the presiding judge.
IV.
We recognize that other judges may have dispensed differently with the problems presented at trial in the instant case. Nevertheless, we conclude that the trial judge did not abuse his discretion in declaring a mistrial over the objection of two defendants here. Bauman’s lack of counsel and his bizarre behavior before the jury, coupled with Campbell’s arrest, were sufficiently prejudicial as to all defendants. The decision to terminate the trial could have been reached similarly by any reasonable judge.
We are satisfied from our review of the record that a high degree of necessity existed for a complete mistrial. We find that the court evaluated, with due deliberation, whether a mistrial or some other curative measure was appropriate. Accordingly, we AFFIRM. A retrial may proceed with respect to all defendants.
. In his December 19, 1988, motion to substitute counsel, Bauman stated, “This motion is not made for the purpose of delay and there is sufficient time before trial for substitution of counsel and no injustice, prejudice, or obstruction of court procedure will be caused by the substitution.” The court granted the substitution, subject to the limitation that "[tjhis order shall not become a basis for a continuance in this case.”
. 777 F.2d 248, 257-58 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986), holding that a trial may proceed without defense counsel if the defendant, in bad faith, retains counsel with a scheduling conflict. The Mitchell court concluded that the right to counsel may be waived if it is purposefully used as an instrument for delay.
. See Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978) (retrial increases the financial and emotional burden on the accused, prolongs the stigma associated with unresolved charges, and increases the risk that an innocent person may be convicted).
. Grooms v. Wainwright, 610 F.2d 344, 346 (5th Cir.), cert. denied, 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980); see also Abdi v. Georgia, 744 F.2d 1500, 1503 (11th Cir.1984) (where grounds for mistrial involve jury prejudice, decision of trial judge deserves "great deference”), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985).
. We also have explained the matter as follows:
The bar of the double jeopardy clause operates to protect an accused against multiple prosecutions or multiple punishments for the same offense. Jeopardy attaches at the empaneling and swearing in of the jury, and from then on, consideration must be given to the defendant’s 'valued right ... to have his trial completed by the particular tribunal summoned to sit in judgment on him.’ When that right is denied by declaration of a mistrial at the behest of the prosecution or on the court's own motion, reprosecution is prohibited unless there is a 'manifest necessity for the [mistrial] or the ends of public justice would otherwise be defeated.’
United States v. Bobo, 586 F.2d 355, 362 (5th Cir.1978) (citations omitted), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979).
. "[It is] readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Arizona v. Washington, 434 U.S. at 505 n. 16, 98 S.Ct. at 830 n. 16 (citing Jorn, 400 U.S. at 480, 91 S.Ct. at 554).
. We note that the trial judge need not make an express finding of "manifest necessity,” nor must he expressly state that he considered alternatives and found none to be superior. See Washington, 434 U.S. at 501, 98 S.Ct. at 828; Abdi, 744 F.2d at 1503. We need only to be satisfied from the complete record that the trial judge exercised sound discretion in declaring a mistrial, sua sponte, in a factual setting that demonstrates a high degree of necessity for terminating the trial before the jury completes its solemn task of rendering a verdict.
. Defendants Talamas and Cary remind us that the judge found no prejudicial bias when he interviewed the jurors but that he did find such bias, or the threat thereof, in subsequent written findings.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_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 ex rel. Jose Juan SOTO, Appellant, v. UNITED STATES of America.
No. 74-1042.
United States Court of Appeals, Third Circuit.
Argued Sept. 20, 1974.
Decided Oct. 24, 1974.
Michael J. Izzo, Jr., Orlofsky, Cozen & Begier, Philadelphia, Pa., for appellant.
Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Kenneth A.. Richie, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from the district court’s denial of a motion under 28 U.S. C. § 2255 to vacate or set aside movant-appellant's sentence. Since the facts are set forth in the district court opinion, 369 F.Supp. 232, 233-234 (E.D.Pa.1973), only the facts most pertinent to the issues now before the court are recited here.
Movant, Jose Juan Soto, was indicted for aiding and abetting a sale of heroin in violation of 26 U.S.C. §§ 4704, 4705 and 18 U.S.C. § 2. When his case was called for trial at 2:30 P.M. on June 1, 1972, Soto’s appointed attorneys asked leave to withdraw as counsel on grounds that movant had “become displeased with [their] representation.” (N.T. 2). In presenting their motion to the court, counsel identified two bases for Soto’s dissatisfaction. First, he had “expressed . . . the feeling that they were not raising every constitutional claim which [they] might perhaps raise on his behalf.” (N.T. 2-3). Second, Soto had expressed resentment of, and resistance to, counsel’s requirement that movant telephone them once a day to determine whether his case had been called for trial. After counsel had argued their motion, the court engaged in a colloquy with Soto which revealed that he had made no arrangements to retain another attorney. 369 F.Supp. at 234, N.T. 3-9. The court thereupon denied counsel’s motion to withdraw, stating that a substitution of attorneys would be allowed in the event that Soto did obtain other counsel. Soto participated freely in the colloquy, volunteering that it was “impossible” for him to leave his truck and be in court on a moment’s notice. 369 F.Supp. at 239 n. 13. He offered no grounds for dissatisfaction other than those already advanced by counsel, though the court appeared willing to hear any and all reasons for such dissatisfaction. Having ruled on the motion to withdraw, the court immediately proceeded to allow Soto’s waiver of jury trial, “partly . . . because [Soto] indicated that [he] want[ed] to get this over with” and was inconvenienced by having the matter continued longer. Upon Soto’s affirmative response to the court’s inquiry whether “you want me to start right now; is that correct,” the case proceeded to trial. (N.T. 12). Testimony was heard until 7:30 P.M. on June 1, 1972, and resumed at 9:30 A.M. on June 2, 1972, to accommodate the trial court’s calendar. A verdict of guilty was announced by the court on June 2, 1972, and movant’s sentence was affirmed on appeal, sub nom. United States v. Santiago, 474 F.2d 1337 (3d Cir. 1972), cert. denied, Soto v. United States, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973). Soto then filed this motion under § 2255.
The crux of the § 2255 motion is that the trial court, by failing to advise appellant of his right to proceed pro se, deprived him of that right, thereby committing a “per se reversible error.” Ancillary to this claim is appellant’s contention that the trial court abused its discretion in denying appointed counsel leave to withdraw without either ascertaining from appellant the reasons for his dissatisfaction with counsel or granting, sua sponte, a continuance so that appellant could obtain substitute counsel or prepare his own defense. We reject all these contentions and affirm the district court order of November 15, 1973.
I.
At the outset, we must determine whether jurisdiction lies under 28 U.S.C. § 2255 to adjudicate appellant’s claim that he was denied the right to proceed pro se. In the recent case of Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (U.S., 1974), the Supreme Court held that a § 2255 proceeding was not limited to the resolution of constitutional claims, but was the proper vehicle for a prisoner to assert that his confinement was invalid due to a change in the law of the circuit. The Court noted that “the grounds for relief under § 2255 are equivalent to those encompassed by 2254, the general federal habeas corpus statute, under which relief is available on the ground that ‘a person is in custody ... in violation of the Constitution or laws or treaties of the United States.’ (Emphasis added).” 417 U.S. at 344, 94 S.Ct. at 2304, citing United States v. Hayman, 342 U.S. [205] at 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952). In sum, the remedy of § 2255 “is intended to be as broad as habeas corpus.” 417 U.S. at 344, 94 S.Ct. at 2304. The Government’s position, that “the petitioner’s claim [was] not ‘of constitutional dimension’ and thus [was] not cognizable in a § 2255 collateral proceeding,” id. at 342, 94 S.Ct. at 2303,
was emphatically rejected as inconsistent with the clear words of the statute. Id. at 343-345, 94 S.Ct. 2298.
Although the courts of appeals disagree over whether the right to represent oneself is constitutionally guaranteed, “there is no dispute that it is a fundamental right.” 369 F.Supp. at 235. The right, embodied in 28 U.S.C. § 1654, was set forth in the Judiciary Act of 1789 and has been consistently honored by the federal courts. Thus, even though we decide that there is no constitutional requirement that an accused be permitted to proceed pro se, see Part II, infra, the statutory right is sufficient to afford jurisdiction under the holding of Davis.
II.
After careful consideration, we reject movant’s contention that the Constitution guarantees a defendant the right to proceed pro se. See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1121 (1972); Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, 365 n. 2 (1959)
The Sixth Amendment provides that the accused in all criminal prosecutions “shall enjoy the right ... to have the assistance of Counsel for his defence.” In interpreting this language, the Supreme Court has repeatedly stressed that it is “an obvious truth” that a fair trial cannot be assured unless a defendant has counsel. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Argersinger v. Hamlin, 407 U.S. 25, 36-37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The central importance of competent legal counsel to the conduct of a fair trial has led the Court to require assistance of counsel at all “critical stages” in the trial process. See, e. g., Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
By contrast, the right to pro se representation is only tangentially related to procuring a fair trial. The primary basis of the right “derives from the belief that respect for human dignity is best served by respect for individual freedom of choice.” 369 F.Supp. at 235-236. See also United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1128 (1972). Pro se representation may. at times serve the ideal of a fair trial better than representation by an attorney. Also, the individual’s freedom of choice and stake in the conduct of his own trial should, on occasion, prevail over society’s generalized interest in the trial process. See Comment, supra note 11, at 1479, 1481. Nevertheless, the right is one that is typically not essential to a fair trial, and, indeed, is generally an obstacle thereto.
The deficiencies of pro se representation as a means of protecting “the integrity of the process,” Mayberry v. Pennsylvania, 400 U.S. 455, 468, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), Burger, C. J„ concurring, prompted the American Bar Association to recommend that the trial judge “consider the appointment of standby counsel to assist the defendant when called upon and to call the court’s attention to matters favorable to the accused upon which the court should rule on its own motion.” A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Judge’s Role in Dealing with Trial Disruptions, 11-12 (1971). Such appointment of standby counsel was also recommended by Chief Justice Burger as a means of accommodating both the accused’s desire to represent himself and the public interest in the fairness of criminal trials. Mayberry, supra at 468, 91 S.Ct. 499. The vital role of counsel in protecting the rights of the accused, which is “a matter of public interest even if the accused has rejected professional assistance,” A.B.A. Project, supra at 12, leads us to reject Soto’s contention that the Sixth Amendment guarantees pro se representation.
Since the right, though important, is only statutory, we conclude that it is waived if not asserted. See Dougherty, supra, Adams, J., concurring, 473 F.2d at 1145; cases cited supra note 15; Williams v. United States, 389 F.2d 34 (2d Cir. 1967); 59 Calif.L.Rev. 1479, 1483 (1971). The trial judge is under no duty to advise any defendant that he may represent himself. Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, 365-366 (1959). This conclusion obviates any need to reach the question of prejudice. We therefore hold that the trial court committed no error in failing to suggest pro se representation as an alternative to the appointed counsel with whom Soto expressed displeasure.
III.
Movant also contends that it was error for the trial court to deny appointed counsel leave to withdraw without first asking Soto the reasons for his dissatisfaction with their representation. As the district court noted, Soto did not raise the issue of his dissatisfaction with counsel. Although he engaged in a colloquy with the court in which he amplified counsel’s statement that he resented checking with them daily to determine the time for trial, Soto never offered any reasons for dissatisfaction in addition to those expressed by counsel. The record clearly indicates both that Soto could have raised such additional objections and that he was not reluctant to express his views to the trial court. See N.T. 3-9. On this record, we affirm the district court’s holding that the obligation of the trial judge “to explore the sources of a defendant’s dissatisfaction with counsel” was discharged. 369 F.Supp. at 239. See also United States v. Young, 482 F.2d 993 (5th Cir. 1973); United States v. Morrissey, 461 F.2d 666 (2d Cir. 1972).
IY.
Finally, we consider Soto’s claim that his expression of dissatisfaction with appointed counsel obligated the trial court to declare, sua sponte, a continuance to enable Soto to obtain other counsel or to prepare his own defense.
Counsel described a slow deterioration in their relation with Soto that culminated in their motion for leave to withdraw. A week before the case was called for trial, Soto had complained about their conduct of his case to Puerto Rican fraternal and social agencies. See note 7, supra. Yet, by the day of trial, Soto had made “no arrangements” to procure other counsel, though he had ample time to do so. McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791 (1965); cf. United States v. McMann, 386 F.2d 611 (2d Cir. 1967). Moreover, there are strong indications in the record that Soto would have opposed a continuance. He had, for example, expressed great resentment over the inconvenience caused by holding himself available to go to trial on short notice. N.T. 5. He waived a jury and requested that his trial proceed immediately after the court’s ruling on counsel’s motion to withdraw, apparently because he was eager to conclude the matter. N.T. 12. Thus, Soto not only failed to request a continuance, he also encouraged expediting the trial. These facts do not suggest that the trial court abused its considerable discretion in refusing to discharge counsel and proceeding directly to trial. United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965); Juelich v. United States, 342 F.2d 29, 32, and cases cited n. 5 (5th Cir. 1965). Soto suggests that the district court improperly required that “good cause” be shown before a defendant is entitled to substitution of counsel. Although such a requirement might not be necessary in all circumstances, it certainly appears proper where, as here, no request for either substitute counsel or a continuance was made and no objection to counsel was expressed to the court prior to the day the trial started.
For the foregoing reasons, the judgment of the district court, denying Soto’s motion under 28 U.S.C. § 2255, will be affirmed.
. 28 U.S.C. § 2255 provides :
“A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.”
. 26 U.S.C. § 4704 provides:
“(a) It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package . . . . ”
26 U.S.C. § 4705 provides in pertinent part:
“(a) It shall be unlawful for any person to sell ... or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold . . . or given, on a form to be issued . by the Secretary . . . . ”
. 18 U.S.C. § 2 provides:
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as principal.
“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
. Marilyn Mauskopf, Esq., was appointed to represent Soto on August 4, 1971, following his indictment on April 29, 1971. On February 25, 1972, Aaron Blumberg, Esq., was appointed co-counsel by order of the court, in accordance with 18 U.S.C. § 3006A.
. When the district judge stated that he was “certainly not favorably disposed to a motion to withdraw at this late stage,” N.T. 2, counsel responded that the motion was filed “approximately a day and a half ago,” at which time counsel “did believe that there was at least another week until the case would be called for trial.” Id. The motion, however, is stamped “Filed Jun 1 1972,” and the district judge had not seen the motion before the time set for trial. Id.
. This “feeling” l.ad apparently been reinforced by Soto’s conference with other, unnamed “attorneys in New York City, who [had] informed him that [his appointed counsel had] not raised every claim . . . on his behalf . . . . ” (N.T. 3.). According to the motion for leave to withdraw, Soto “refused to provide counsel with the names and addresses of the New York lawyers” (see par. 6).
. “Since Mr. Soto is a truck driver and unavailable all day, and since his case is high on the list of criminal cases about to be called for trial, counsel had requested Mr. Soto to telephone them daily in order to ascertain when his case would be called for trial.” Motion for leave to withdraw at par. 7. Soto had complained to Puerto Rican fraternal and social agencies that “counsel were treating him unfairly by requiring that he telephone them once a day.” Id. Counsel also stated that Soto had refused to telephone counsel. Id. at par. 8.
. Before agreeing to accept the waiver of jury trial, the court stated that “if I take it I will probably have to work a little later tonight, because I have some time problems tomorrow that I have to concern myself with.” (N.T. 10).
. The Government’s position was widely accepted before Davis. “The lower courts have been virtually unanimous in barring non-constitutional claims on § 2255 motions.” Bator, Mishkin, Shapiro and Weehsler, Hart and Wechsler’s The Federal Courts and the Federal System 1531 n. 8 (2d ed. 1973). Many commentators have read Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), as limiting § 2255 relief solely to constitutional claims. In Davis, Justice Stewart distinguished Sunal and Ilill on their facts in declaring that there was “no support in prior cases” for limiting § 2255 to constitutional claims. 417 U.S. at 345, 94 S.Ct. 2298. See generally, Developments in the Law — Federal Habeas ‘Corpus, 83 Harv. L.Rev. 1038, 1067-70 (1970).
. 28 U.S.C. § 1654 provides:
“In all courts of the United States t'..e parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.”
. See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1122-1123 (1972) ; Comment, Self-Representation in Criminal Trials: The Dilemma of the Pro Se Defendant, 59 Calif.L.Rev. 1479 (1971) [hereinafter cited as Comment].
. We have not overlooked other federal court decisions stating that the right to proceed pro se is a constitutional right. See United States v. Price, 474 F.2d 1223 (9th Cir. 1973) ; United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971) ; Lowe v. United States, 418 F.2d 100 (7th Cir. 1969) ; Juelich v. United States, 342 F.2d 29, 31 (5th Cir. 1965) ; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). These cases relied on dictum in Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942), stating that the “right to dispense with a lawyer’s help” is “correlative” to “the right to assistance of counsel.” The Court did not, however, say that this “correlative” right is guaranteed by the Constitution. Brown v. United States, 105 U.S. App.D.C. 77, 264 F.2d 363, 365 n. 2 (1959).
Moreover, in Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), the Court specifically noted that “the ability to waive a constitutional right [such as counsel] does not ordinarily carry with it the right to insist on the opposite of that right.” We find Singer analogous since the right to counsel, like the right to jury trial, affects the fairness of the trial. See infra. But see Comment, id. at 1488-89. We are not persuaded by the reasoning of the cases finding a constitutional right to pro se representation and we decline to follow them.
. A second basis is the need for confidence in the attorney-client relation. United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1128 (1972) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). See note 15 infra.
. The Commentary to Standard C.3 (“Standby counsel for defendant representing himself”) includes this language (p. 12) :
“Even if the defendant is permitted to represent himself at the trial, in all but the simj)lest trials — and perhaps even in those if resources permit — it will be prudent for the trial judge to arrange for standby counsel to be present at all times. . . . [T]he presence of such counsel . . . may also serve to protect the rights of the accused, a matter of public interest even if the accused has rejected professional assistance. The experience of those judges who have appointed standby counsel is that the pro se defendant often discovers, early in the trial, the value of counsel and will consent to being represented by the standby.”
. We are not alone in finding that a constitutional right to proceed pro se and a constitutional right to counsel are incompatible. The Ninth Circuit, which recognizes both rights, recently acknowledged that “it is manifest that any such two constitutional rights cannot actively co-exist.” United States v. Dujanovich, 486 F.2d 182, 185 (1973). Because of the basic conflict between the two rights, especially given the standard for waiver of counsel, VonMoltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), both the Second and Ninth Circuits have devised guidelines for trial judges who would otherwise be put in the position of laying “an appeal or a collateral attack by either a denial or a granting of the request” to proceed pro se. Id. 486 F.2d at 184. See also Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir. 1965). For a graphic illustration of the difficulties posed by positing both rights as constitutional, see United States v. Rosenthal, 470 F.2d 837, 844-845 (2d Cir. 1972).
. Even had we found the right to be constitutional, it would not follow that a defendant must be advised of it. See 369 F.Supp. at 236-238. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), holding that the police need not advise that consent to a search may be withheld. The Court pointed out that “[ajlmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” 412 U.S. at 237, 93 S.Ct. at 2053. Since the value promoted by pro se representation is primarily one of free choice, rather than the conduct of a trial fair to the defendant, see Dougherty, supra, 473 F.2d at 1128, the knowing waiver standard would not apply under Sohneekloth. It is true that Plattner, supra, recognized a subsidiary, trial-related function of the pro se right in recognizing that defense by counsel in whom defendant has no confidence may be less effective than lay defense, but in light of the reasoning of the right to counsel cases (see page 1343 above), this function may be of doubtful importance. See also 369 F.Supp. at 235 n. 7. But see Comment, note 11, supra at 1481, 1489.
. Soto does not contend that his reluctance to cooperate with appointed counsel, motion for leave to withdraw, par. 8, constituted t’..e “good cause” sufficient to require a substitution of counsel. We note that both United States v. Pomeroy, 485 F.2d 272 (9th Cir. 1973), and United States v. Young, 482 F.2d 993 (5th Cir. 1973), suggest that'such “good cause” requires the existence of an “irreconcilable conflict.”
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_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
RIDGE RADIO CORPORATION, Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Dr. E. Z. Eperjessy, Louis Popp, and William H. Myers, co-partners, d/b/a Windber Community Broadcasting System, Intervenors.
No. 15946.
United States Court of Appeals District of Columbia Circuit.
Argued April 11, 1961.
Decided June 8, 1961.
Messrs. Robert Bennett Lubic and Isadore G. Aik, Washington, D. C., for appellant.
Mr. Richard M. Zwolinski, Counsel, Federal Communications Commission, with whom Mr. John L. FitzGerald, General Counsel, Federal Communications Commission, at the time the brief was filed, Mr. Max D. Paglin, now General Counsel, Federal Communications Commission, and Mr. Joel Rosenbloom, Counsel, Federal Communications Commission, at the time the brief was filed, were on the brief, for appellee. Mr. Daniel R. Ohlbaum, Asst. General Counsel, Federal Communications Commission, also entered an appearance for appellee.
Mr. William P. Bernton, Washington, D. C., for intervenor. Mr. E. Theodore Mallyck, Washington, D. C., also entered an appearance for intervenor.
Before Wilbur K. Miller, Chief Judge, and Bazelon and Fahy, Circuit Judges.
FAHY, Circuit Judge.
The Federal Communications Commission denied the request of Ridge Radio Corporation, herein referred to as Ridge, that its application for a new standard broadcasting station to operate on 1350 kilocycles at Windber, Pennsylvania, be consolidated for hearing with other mutually exclusive applications. At the same time the Commission dismissed Ridge’s application. Petition for reconsideration was also denied and Ridge then appealed to this court.
The question is whether Ridge was validly denied the consolidated hearing it sought because its application was filed after a cut-off date had been set by the Commission in circumstances now to be stated.
The Commission’s rule regarding consolidations, section 1.106(b) (1), reads as follows:
“In broadcast cases, no application will be consolidated for hearing with a previously filed application or applications unless such application, or such application as amended if amended so as to require a new file number, is substantially complete and tendered for filing by whichever date is earlier: (i) The close of business on the day preceding the day the previously filed application or one of the previously filed applications is designated for hearing; or (ii) the close of business on the day preceding the day designated by public notice published in the Federal Register as the day any one of the previously filed applications is available and ready for processing.”
On July 30, 1959, the Commission issued a public notice in which it listed fifty applications that would be considered ready and available for processing by September 5, 1959. The notice advised that,
“[A]n application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing at the offices of the Commission in Washington, D. C., no later than the close of business on September 4, 1959, or, if action is taken by the Commission on any listed application prior to September 4, 1959, no later than the close of business on the day preceding the day on which action is taken.”
As September 4, 1959 arrived before action was taken on any listed application that date became the cut-off date under the notice.
Ridge’s application was filed November 23, 1959. There were then on file, among others later to be mentioned, the following applications for a new station on 1350 kilocycles at Windber:
“Gosco Broadcasters, herein referred to as Gosco, filed May 15, 1959, public notice of the filing being announced on May 18, 1959; and
“Windber Community Broadcasting System, herein referred to as Community, filed September 4, 1959.”
On January 7, 1960, pursuant to section 309(b) of the Communications Act of 1934, the Commission advised twenty-nine applicants, as well as other known parties in interest; that since their proposals involved mutual interference a consolidated hearing would be required to determine which proposals should be granted. This is the consolidated hearing in which Ridge sought a place. Included among the twenty-nine was WKRZ, Incorporated, licensee of station WKRZ, Oil City, Pennsylvania, seeking increase in power on its frequency of 1340 kilocycles. Also among the twenty-nine was the application of Connellsville Broadcasters, Incorporated, herein referred to as Connellsville, licensee of station WCVF, Connellsville, Pennsylvania, filed August 25,1959, for increase in power on its frequency of 1340 kilocycles. Connellsville was included because of objectionable interference it would cause to station WKRZ. Also included were Gos-co and Community because of objectionable interference they would cause to the Connellsville proposal, and because they were mutually exclusive of each other. Ridge was not included although, like Gosco and Community, it sought a new station at Windber on a frequency of 1350 kilocycles.
Ridge had no interest in any application included in the list published July 30, 1959, but, as above indicated, it did have an interest in the applications of Gosco and Community. As stated, the latter were included in the consolidated hearing because Connellsville, which filed August 25, 1959, created a possible interference with station WKRZ, and Connellsville was also in possible conflict with Gosco and Community. Of these, all except Ridge had filed by September 4, 1959, though only WKRZ was listed in the notice of July 30, 1959, and Ridge had no conflict with WKRZ.
Since the Commission’s denial of Ridge’s request for inclusion in the comparative hearing referred to in the letter of January 7, 1960, was based on the filing of its application after September 4. 1959, we do not consider any other basis which might have been but was not advanced by the Commission for its decision.
It is not questioned that Ridge would have been entitled under the Ashbacker doctrine to the consolidation it sought unless Ridge was cut off, as the Commission found, under section 1.106(b) (1) of its rule and the July 30, 1959 notice given under the rule. This new provision of the Commission grew out of the administrative difficulties to which the Ashbacker decision gave rise. Some such provision became necessary to prevent inordinate delays which arose through “chain reaction” conflicts such as are illustrated by this case. The right to provide an administrative solution of this sort was suggested by the opinion of the Court in Ashbacker, where it is said: “Apparently no regulation exists which, for orderly administration, requires an application for a frequency, previously applied for, to be filed within a certain date.”
The Commission construes the rule to mean that unless filed before the cut-off date an application may not be consolidated for hearing with any application previously filed, which included WKRZ in this case, with which Ridge had no conflict, and Gosco and Community with which Ridge did have a conflict, but which were not on the list of July 30, 1959. The Commission explains that this meaning of the rule was made clear when the present text of the rule was adopted, though the Commission then recognized that it might exclude from consideration applications filed before the date of hearing itself. The Commission deemed this result to be in the public interest after weighing the rights of the excluded appplicant with the need for expeditious disposition of applications.
We do not in this case question the authority of the Commission to enforce the rule it has adopted, or to give it the construction above set forth. But in carrying out the rule so construed the Commission may not, however inadvertently, give public notice of a cut-off date which does not fairly advise prospective applicants of what is being cut off by the notice. In the present case the Commission published a list of fifty applications that would be considered ready and available for processing by September 5, 1959, and advised potential applicants that “an application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing * * * no later than the close of business September 4, 1959 * * In reading this notice one would reasonably conclude that it was directed only to applications having a possible conflict with some application on the list. It was not a warning that an application filed after September 4 would be precluded from Ashbacker consideration with an unlisted mutually exclusive application filed before that date and which in some way was in conflict with another unlisted application also filed before September 4, which in turn was in conflict with a listed application. To make the amended rule have that effect in a particular case the notice under the rule must be clearer as to the effect intended.
It is difficult enough to read section 1.106(b) (1) itself as the Commission interprets it, but we accept that interpretation in light of the history of the provision. Nevertheless, when a particular cut-off date is fixed by public notice a potential applicant is entitled to rely upon the terms of the notice. The Commission is not required in a notice to phrase its cut-off provision so broadly as to encompass all the rule itself permits. It may validly do less by the notice. In this case we think it did less. As phrased the notice was not fair warning that to be considered with Gosco and Community, not on the list, Ridge must file by September 4. Since, therefore, the notice did not deprive Ridge of its right to an Ash-backer hearing with other Windber-area applications, and since the rule was restricted in this case by the scope of the notice, the order of the Commission will be reversed and the case remanded to the Commission for further proceedings not inconsistent with this opinion.
We need hardly add that the question as to the adequacy of the notice does not evoke the principle of judicial deference to administrative expertise, often available to support Commission decisions of a different character.
It is so ordered.
. 47 C.F.R. § 1.106(b) (1) (Supp.1960).
. 24 Fed.Reg. 6248-49 (1959).
. 48 Stat. 1085 (1934), as amended, 47 U.S.C. § 309(b) (Supp. II 1959-60), 47 U.S.C.A. § 309(b), not including the amendment effective December 12, 1980.
. Since the Ridge application was not timely filed under the cut-off provisions of the Rules to be considered with the applications listed in the 309(b) letter of January 7, 1960, and since it is mutually exclusive with the applications of Gosco and Community listed therein, the application must be dismissed under the provisions of § 1.106(b) (4) of the Rules which states that, “Any mutually exclusive application filed after the date prescribed [cut-off date as published in Federal Register] * * * will be dismissed without prejudice and will be eligible for refiling only after a final decision is rendered by the Commission with respect to the prior application or applications or after such application or applications are dismissed or removed from the hearing docket.” Ridge Radio Corp., 20 Pike & Fischer R.R. 197, 202 (1960).
. Ashbacker Radio Corp. v. Federal Communications Comm’n, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108.
. See Revision of AM Processing Procedure, 18 Pike & Fischer R.R. 1565 (1959).
. 326 U.S. at page 333, note 9, 66 S.Ct. at page 151, note 9.
. In its petition for reconsideration filed with the Commission, Ridge laid emphasis upon the failure of the Commission in its discretion to waive the rule. But the Act does not limit our review to matters stressed in the petition for reconsideration. In view of the contentions and presentations as a whole, before the Commission and this court, we would not feel justified in failing to decide the case on the question of notice.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
HELVERING, Com’r of Internal Revenue, v. STATE-PLANTERS BANK & TRUST CO.
No. 4927.
Circuit Court of Appeals, Fourth Circuit.
Aug. 18, 1942.
Ellis N. Slack, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Louise Foster, Sp. Assts. to Atty. Gen., on the brief), for petitioner.
Robert J. Heberle, of Richmond, Va., for respondent.
Before PARKER and SOPER, Circuit Judges, and TIMMERMAN, District Judge.
PARKER, Circuit Judge.
This is a petition by the Commissioner of Internal Revenue to review a decision of the Board of Tax Appeals. The taxpayer is a commercial bank of Richmond, Virginia. During the years 1931-1938, it charged off as worthless and deducted from its income tax returns certain debts which it subsequently collected in the year 1939. The Commissioner determined deficiencies in the income and excess profits taxes of taxpayer for the year 1939 based upon its collection of these debts, and taxpayer appealed to the Board of Tax Appeals. The Board sustained the Commissioner as to the recoveries of debts charged off during years wherein the returns of taxpayer showed losses in an amount less than the amount of debts charged off, but reversed the Commissioner with respect to recoveries of debts which had been charged off in years wherein the loss shown by the returns was greater than the amount of the debts. The action of the Board in the latter respect was based upon the idea that recoveries of bad debts are to be included in income only to the extent that a tax benefit has been received from a prior deduction of the debt, and that no such benefit can be predicated of a deduction allowed in a year where the return shows a loss greater than the deduction. We think the Board was in error.
Sec. 22 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 22, provides: “ ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including personal service as an officer or employee of a State, or any political subdivision thereof, or any agency or instrumentality of any one or more of the foregoing), of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. í¡S
Bad debts are allowed as a deduction in the computation of net income, if ascertained to be worthless and charged off within the taxable year. 26 U.S.C.A.Int.Rev. Code, § 23 (k) (1). But any amount subsequently received on a bad debt thus charged off must be included in gross income for the taxable year in which received. Treasury Regulations 103, sec. 19.23 (k)-l, provides: “Any amount subsequently received on account of a bad debt or on account of a: part of such debt previously charged off and allowed as a deduction for income tax purposes, must be included in gross income for the taxable year in which received. * * *”
And that bad debts subsequently collected after being charged off as worthless should be included in income, see Putnam Nat. Bank v. Com’r, 5 Cir., 50 F.2d 158; Com’r v. Liberty Bank & Trust Co., 6 Cir., 59 F.2d 320; Askin & Marine Co. v. Com’r, 2 Cir., 66 F.2d 776; S. Rossin & Sons v. Com’r, 2 Cir, 113 F.2d 652.
There is nothing in the regulation or in any statute which makes the inclusion in gross income of collections on bad debts, previously charged off as worthless, dependent upon whether or not the charge off has resulted in a tax benefit to the taxpayer. It is argued that the language of the regulation providing for the inclusion of the collection only where the debt has been “charged off and allowed as a deduction for income tax purposes” has this effect; but manifestly a debt is charged off and allowed as a deduction for income tax purposes when it is claimed and allowed as a deduction in the return of the taxpayer, for the charge off and allowance is made in connection with the return, not in connection with the payment of the tax.
It is to be noted that only where the bad debt has been charged off and allowed as a deduction is it to be included in income when collected. The taxpayer is thus given an option by the statute and, only where he exercises the option, is he required, to account for the collection as income. Where he does exercise it, however, by charging off the debt as worthless in his return, he is bound by the election so made. Cf. J. E. Riley Inv. Co. v. Com’r, 311 U.S. 55, 61 S.Ct. 95, 85 L.Ed. 36; Scaife Co. v. Com’r, 314 U.S. 459, 62 S.Ct. 338, 86 L.Ed. -. When he collects the debt thereafter he must account for the collection as income ; for by electing to charge it off, he is precluded from treating it as capital or its collection as the restoration of capital and under the existing regulation impliedly consents that it be treated as income. When a debt has thus been charged off in one year and collected in a subsequent year, the fact that such charge off did or did not result in tax benefit cannot be considered in connection with the taxability of its collection as income both because the taxability is determined by the charge off and not by the tax benefit accruing therefrom and because each taxable year must be regarded as an independent unit for income tax purposes. Burnet v. Sanford & Brooks Co, 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383.
It is argued that a bad debt constitutes a capital loss, that recovery thereon is a mere restoration of capital, and that only on the theory of estoppel, because the deduction of the debt has been used to reduce taxable income, is it permissible to include the recovery in gross income. This, however, not only ignores the fact that the taxpayer elects, by charging off the debt, to eliminate it as a capital item and treat any possible collection of it as income, but, in the case of a business, is clearly contrary to proper accounting theory and practice. Bad debts are ordinarily treated as operating expense of a business in arriving at net operating gain or loss; and consequently a recovery on debts previously charged off is properly treated as income rather than as a return of capital, irrespective of what effect the charge off may have had upon income tax. The statutory provision for deduction of bad debts and the regulation requiring subsequent recovery thereon to be included in gross income is but recognition of this well established accounting practice. As said in G. C. M. 22163, 1940-2 Cum. Bull. 76: “Bad debts charged off in any business are deductible under a specific provision of the Revenue Acts rather than as ordinary and necessary business expenses. They are, nevertheless, under well-established accounting practices, recognized as operating expenses of the business deductible as such in arriving at the net operating gain or loss for the periods involved. See Finney, Principles of Accounting, 1934 Edition, Volume 1, page 37, and Kester, Principles of Accounting Fourth Edition, pages 46, 116, and 554. Consequently the amount represented by debts which become worthless and are charged off in the carrying on of a trade or business is not to be considered as an investment of capital which must first be returned in full before taxable income is derived. Under this principle, amounts recovered in any taxable year upon debts previously charged off and allowed as a deduction should be treated as taxable income regardless of whether the prior allowance of the deduction resulted in a tax benefit to the taxpayer.”
But as indicated above, irrespective of whether the bad debt has been charged off in connection with the carrying on of a trade or business, we think that the taxpayer by charging it off has elected to eliminate it as capital and to treat any subsequent collection made on it as income; and because each tax year must be treated as an independent unit for the purpose of income taxation, the question of tax benefit in the year of deduction cannot be considered in connection with the taxability of the collection. The case of Burnet v. Sanford & Brooks Company, supra, was a case in which a construction loss incurred in performance of a government contract and deducted in the years when incurred was recovered in a subsequent year. It was held, in application of the rule that each taxable year must be regarded as an independent unit for income tax purposes, that the recovery must be taxed as income of the year when collected. No logical distinction can be made, we think, for income tax purposes, between recovery of a construction loss and recovery of a bad debt theretofore charged off as worthless.
The situation is closely analogous to that which arises where property chargeable with depreciation is sold for a sufficient sum to cover the depreciation. The seller, in such case, must return as income the difference between the sale price and the depreciated cost of the property, even though the deduction of depreciation has resulted in no tax benefit and even though depreciation may not have been deducted at all. United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054; Hardwick Realty Co. v. Com’r, 2 Cir., 29 F.2d 498. There is just as much reason to say that, up to the original cost, the sale price of property is a return of capital as to say that the collection of a worthless debt is such return; and there is just as much reason to require tax benefit in the case of depreciation used as a deduction as in the case of a worthless debt so used. Depreciation represents a loss of invested capital just as truly as does the loss of a debt; deduction during the year that the loss occurs is permitted in both cases; and the holding that depreciation may not be ignored in determining gain for computing income on the sale of property, even though the depreciation has resulted in no tax benefit, would seem to be controlling in the case of the recovery of a debt, the charging off of which as worthless has likewise resulted in no tax benefit.
Directly in point is the decision of Judge Miller of the Western District of Kentucky in Stearns Coal & Lumber Co. v. Glenn, D. C., 42 F.Supp. 28, 31, wherein he said: “Since amounts recovered on debts previously charged off as worthless is income for the year in which it is recovered it remains merely to consider whether or not it is necessary for such deductions to have been used for tax purposes in previous years. This question appears to have been decisively answered by the opinion of the Supreme Court in Burnet v. Sanford & Brooks Co., supra, which holds that money received in a certain year is income for that year, regardless of whether there was a net profit or a net loss in previous years. It pointed out that in the administration of the Income Tax Law it was not only proper but necessary that definite units of time, such as a period of twelve months, be treated as separate units for the purpose of determining in each unit, independently of what may have occurred in another unit, the net income for that particular period. It was stated in that opinion that ‘the excess of gross income over deductions did not any the less constitute net income for the taxable period because respondent, in an earlier period, suffered net losses in the conduct of its business which were in some measure attributable to expenditures made to produce the net income of the later period.’ ”
There is nothing in the decision of the Circuit Court of Appeals of the Ninth Circuit in National Bank of Commerce v. Com’r, 9 Cir., 115 F.2d 875, to the contrary. That case involved a bank reorganization in which debts had been charged off as worthless prior to the reorganization. The holding was that the reorganized bank was liable for income tax on the recoveries on these worthless debts on the same basis as the bank that charged them off would have been if the reorganization had not occurred. It is nowhere suggested that recoveries should be added to income only in the event that a tax benefit had been received from the deduction.
It should be noted that the view of the Board with respect to this question was originally in accord with that which we have expressed. The precise point was presented in Lake View Trust and Savings Bank v. Com’r, 27 B. T. A. 290, where the Board said: “The petitioner contends that the collections made in the taxable years before us, on the debts ascertained to be worthless, charged off on its books, and claimed and allowed as deductions from gross income of the earlier years, do not constitute taxable income. The argument is advanced that since the petitioner had net losses in the earlier years, it has received no benefit from the claimed deductions and that there was no detriment to the Government’s revenue thereby. In other words, the assertion is made that such debts, though ascertained to be worthless and actually charged off- on the taxpayer’s books in a particular year, should not be reflected in the computation of tax liability unless the deduction of the debt actually reduces the taxpayer’s taxable income. With this we can not agree. The deduction for bad debts is provided by statute and is predicated upon (a) the ascertainment of worthlessness, and (b) the actual charge-off, and not upon the ultimate resulting benefit to a taxpayer.”
The change in the Board’s position may have been due to two rulings of the Treasury Department, G. C. M. 18525, C. B.-1937-1, 80 G. C. M. 20854, Cum.Bull. 1939-1, 102. These rulings have been superseded by G. C. M. 22163, 1940-2 Cum.Bull. 76, in which the chief counsel of the Bureau of Internal Revenue ably reviews the question and reaches the conclusion that the rule of Lake View Trust and Savings Bank v. Com’r, supra, is the correct rule to be followed and is in accord with the decision in Burnet v. Sanford & Brooks Co., supra.
To apply the rule contended for by taxpayer would, we think, result in great confusion and complication in this particular branch of the tax law. What would be the rule where the charge off has resulted in tax benefit only to the extent of a portion of the debt ? What, where other deductions are involved which, together with the deduction of the debt, result in no taxable income? What of the situation where, because of difference in tax rate, the tax benefit from the deduction does not equal the amount of the tax arising from the collection? The rule which we think is the correct one presents no such difficulties and is logically unassailable. The taxpayer is bound by the election which he has made in charging the debt off and deducting it as worthless in his return. There is no occasion to inquire whether this has resulted in tax benefit, for the matter under consideration is the income of a subsequent year.
For the reasons stated, the decision of the Board will be reversed and the cause will be remanded to it for further proceedings in accordance with this opinion.
Reversed.
Contra, see Philadelphia Nat. Bank v. Rothensies, D.O., 43 F.Supp. 923.
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_circuit
|
B
|
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.
CARFELO v. DELAWARE, L. & W. R. CO.
No. 69.
Circuit Court of Appeals, Second Circuit.
Dec. 7, 1931.
Evans, Hunt & Bees and William Gr. Walsh, all of New York City, for plaintiff-respondent.
Douglas Swift, of New York City, for defendant-appellant.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge
(after stating the facts as above).
This appeal brings up for review the ruling of the court in denying the defendant’s motion for a directed verdict and some questions relating to the charge.
It was, of course, necessary to take the evidence in the light most favorable to the plaintiff in passing upon the motion for a directed verdict. This required that it be taken for granted that there was not only no lookout on the defendant’s engine and no warning or signal given from it to the plaintiff, but that he was crossing the track on a path over it which the defendant knew was there, knew was used by its section men in connection with their work, and that the use the plaintiff was making of it when injured was so closely connected with interstate commerce as to be a part of it. We do not think, however, that the evidence either required or permitted the court to assume that the engine was being operated at excessive speed. The evidence was virtually all to the effect that it was not. The testimony of one witness who- based his opinion on what may fairly be called a glimpse of it as it was moving, not past, but away from him, can hardly be called more than a scintilla, and the plaintiff did not even ask to have that question submitted to the jury. See Hammond v. Crawford (C. C. A.) 66 F. 425.
It is obvious that the rights of the plaintiff and the liability of the defendant must be determined from the standpoint of an employee engaged in performing the work of an employer in interstate commerce, for this action is based wholly on the Federal Employers’ Liability Act. The duty the defendant may have owed to others at the time and place the plaintiff was injured cannot be brought to bear upon the decision of this case. He must win or lose solely on an application of the law which applies to- employees of the class to- which- he belonged. Chesapeake & Ohio Ry. Co. v. Mihas, 280 U. S. 102, 107, 50 S. Ct. 42, 74 L. Ed. 207.
So the problem simmers down to whether or not a section man, working on the track of his employer at the point where a known path, used by all who will, crosses that track, is entitled to be looked out for and warned of the presence of such engines or trains moving toward him as the employer runs along the track. As no custom to give any warning to section men at this place was shown, the rights and duties of these parties are controlled by the law as laid down in the case of Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914. which is binding upon us and which we followed in Biernacki v. Pennsylvania R. R. Co. (C. C. A.) 45 F.(2d) 677. See, also, Reynolds v. N. Y. O. & W. Ry. Co. (C. C. A.) 42 F.(2d) 164; Toledo, St. Louis & Western R. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758. We believe that, in so-far as eases like Southern Ry. Co. v. Smith (C. C. A.) 205 F. 360, and Central R. R. Co. of N. J. v. Sharkey (C. C. A.) 259 F. 144, are to the contrary, they have been overruled. Now a section man must rely upon his own vigilance to protect himself from injury by engines and trains his employer operates over tracks on which he may be engaged in the line of his duty without being looked out for by those in charge of such engines or trains or given any warning by them unless he is seen. That is one of the risks he assumes when he undertakes this kind of employment. The fact that he happened to be at a path across the track when he was injured did not decrease this risk which the plaintiff assumed, for he must be treated as still at work when there-, else this action would not lie at all, and when so considered we are not free to relieve him of the assumption of risk of not being seen or warned while at work even though the defendant would, perhaps, have been in duty bound to have seen and warned others at that time and place. C. & O. Ry. Co. v. Mihas, supra; C. & O. Ry. Co. v. Nixon, supra. Since the motion for a directed verdict should have been granted, it is unnecessary to consider exceptions to the charge,'
Judgment reversed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_appel1_3_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
The CITIZENS NATIONAL BANK OF EVANSVILLE, et al., as Executor of the Last Will and Testament of G. Ashburn Koch, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 15254.
United States Court of Appeals Seventh Circuit.
March 31, 1966.
Castle, Circuit Judge, dissented.
Jerome I. Chapman, Office of the Solicitor General, John B. Jones, Jr., Asst. Atty. Gen., Tax Division, Dept, of Justice, Washington, D. C., Richard P. Stein, U. S. Atty., Indianapolis, Ind. (Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Michael K. Cavanaugh, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellant.
Edwin W. Johnson, Evansville, Ind. (John L. Carroll, Evansville, Ind., on the brief), for appellee.
Before ENOCH, CASTLE and EILEY, Circuit Judges.
EILEY, Circuit Judge.
Plaintiff-Bank sued under 28 U.S.C. § 1346(a)(1) for refund of estate taxes paid after the District Director of Internal Revenue disallowed part of a marital deduction claimed in the estate tax return filed by the Bank by virtue of the Int. Rev. Code of 1954, § 2056. The district court held in favor of the Bank under § 2056(b)(5). We affirm.
The deduction was claimed by the Bank as executor of decedent’s will and trustee under a residuary trust in which the settlor-husband provided, so far as relevant here:
(a) In the event I die prior to October 1, 1961,1 direct my Trustee to pay to my wife the sum of Two Hundred Dollars ($200.00) per month up to and through December 1, 1964, and then to pay to my wife the sum of Three Hundred Dollars ($300.00) per month after December 1, 1964, each and every month for the duration of her life.
The widow was the sole trust beneficiary, the only person entitled to any income, and was given the general power to appoint the remainder of the trust by her last will and testament. Since the settlor died September 25, 1959, we are concerned only with the payments of $200.00 per month and whether these payments provide the widow with an interest in “all the income from a specific portion” of the entire interest, § 2056(b)(5), thus qualifying for the marital deduction. The part of the marital deduction based on the value of the trust estate created by the will was claimed by the executor, disallowed by the District Director, and after the Bank’s claim for refund was disallowed, this suit followed.
The district court determined, by use of the annuity tables and directions promulgated by the Treasury Department, that the widow was entitled, by virtue of the $200.00 monthly income provision under the trust, “to all of the income from a specific portion of the trust * * * in the amount of $68,572.00,” and that this amount qualified as a marital deduction. That dollar amount is the sum which, at 3% % interest, should produce $200.00 income per month for the surviving spouse, according to actuarial computation. The court disapproved, as inconsistent with the statute, Treasury Regulation on Estate Tax (1954 Code), § 20.2056(b)-5(c), relied on by the Government, in so far as it would limit the statutory term “specific portion” to “a fractional or percentile share.”
A marital deduction equal in value to a maximum 50% of the adjusted gross estate is allowed for the value of any interest in property which passes from the decedent to the surviving spouse. However, since the widow’s interest here is a right to a limited amount of income for the duration of her life, and therefore a “terminable interest,” her interest under the trust before us is deductible only if her life interest is in “all the income from a specific portion” of the entire interest. There is no claim that the 3% % rate applied was an improper rate.
The parties agree that the “sole issue * * * is whether the surviving spouse was entitled for life to all the income from a specific portion of the corpus of the trust,” so as to come within the provisions of § 2056(b) (5). We hold that the surviving spouse was entitled for life to all the income “from a specific portion” of the corpus of the trust, and that the Bank was entitled to include that amount in the return filed as part of the claimed marital deduction.
The purpose of the marital deduction provision was to extend to spouses in common law states the advantages of married taxpayers in community property states, by permitting the surviving spouse to acquire free of estate tax up to one-half of the decedent’s adjusted gross es-state, Dougherty v. United States, 292 F.2d 331, 337 (6th Cir. 1961), and to bring about a two-stage payment of estate taxes, United States v. Stapf, 375 U.S. 118, 128, 84 S.Ct. 248, 11 L.Ed.2d 195 (1963). The “terminable interest” limitation was intended to prevent an escape from tax liability of the second step, i. e., the passing of the surviving spouse’s interest to “any other person” upon termination of her life estate or other terminable interest without estate or gift tax, United States v. Stapf, 875 U.S. at 128, 84 S.Ct. 248; Dougherty v. United States, 292 F.2d at 337; Commissioner v. Ellis’ Estate, 252 F.2d 109, 112 (3rd Cir. 1958). By section 361 of the Revenue Act of 1948, Congress amended section 812(e) of the 1939 Code to introduce the marital deduction provision. But the result was a failure to eover the situation in which the surviving spouse “received less than all of the trust income or the power to appoint less than all of the trust property.” This legislative deficiency was remedied by Congress in section 2056(b)(5) of the 1954 Code, which excepts from the terminable interest rule a life estate in income from a “specific portion,” with power to appoint that portion.
The qualification of the widow’s interest for deduction must be determined as of the time of her husband’s death. Jackson v. United States, 376 U.S. 503, 508, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964). The Government argues that since the widow's estate is not a “fractional or percentile” part, required by Treasury Regulation § 20.2056(b)-5(c), it cannot be a “specific portion”; that the capitalized sum reached by the district court cannot be “specific” because the value of the entire trust corpus is subject to fluctuation due to economic conditions, resulting in a risk of tax loss to the Government in a period of economic deflation while, her income being constant, there is no risk to the widow of increased tax in an inflationary period; and that, even if the capitalized sum can be a “specific portion” of the corpus, the widow is not entitled to “all the income” from that portion, because (1) the will provides only that she receive $200.00 per month from the trust, and in addition, permits invasion of corpus if necessary for these payments, and (2) it cannot be said, or assumed, that the trust will have a uniform return on corpus of 3%% per year, which means the amount necessary to produce $200.00 per month will vary.
These theories, with the exception of the latter argument, as well as the Government’s arguments urged here on the legislative history of § 2056 and the provisions of regulation § 20.2056(b)-5(c), were rejected by the Second Circuit in Gelb v. C.I.R., 298 F.2d 544, 549-552 (2nd Cir. 1962). There the wife was given a life interest in the “net income” and a general power of appointment by will over the remainder at her death, and the issue was whether a power, given to the trustees to invade corpus for a maximum of $5,000.00 per year for the support and education of a minor daughter, destroyed the marital deduction because the wife would not have the power to appoint the “entire interest” or a “specific portion” thereof. The court approved the use of actuarial tables to capitalize the sum needed to provide from corpus for the annual $5,000.00 invasion-ary power, and upheld the marital deduction under § 2056(b)(5) by subtracting the capitalized sum from the entire corpus to arrive at the “specific portion” of the corpus over which the widow had power to appoint. Specifically disapproved was regulation § 20.2056(b)-5(c) in so far as it would limit “specific portion” to “a fractional or percentile share.” The court said that Congress would not “balk” at using the method to delineate a “specific portion” because of the widespread use of actuarial tables in solving estate tax problems.
A district court in Northeastern Pennsylvania Nat. B. & T. Co. v. United States, 235 F.Supp. 941 (M.D.Pa.1964), followed Gelb in giving the statutory term “specific portion” a broader meaning than that sought here by the Government. There the trustee was directed to pay the widow, from income and corpus, monthly payments for her life, and she was empowered to appoint any or all of the corpus remaining at her death. The trustee listed the value of the trust corpus which passed under the will as qualifying for a marital deduction. The deduction was disallowed. The Government there urged upon the court the same arguments that it urges here. Plaintiff contended that the widow was entitled to the deduction, at least to the extent of the value of the “specific portion” computed actuarially, since she alone received income payments and had the general power of appointment by will over the remainder at her death.
The court considered the Government argument that both the widow and Government should share equally in the risk of the fluctuation in value of the corpus resulting in decrease or increase in taxes, and that the “fractional or percentile share” requirement of the regulation must be met. The court, however, following Gelb, rejected the Government’s arguments and computed actuarially the portion of the corpus which was needed to yield the widow’s income and allowed the deduction accordingly. The court, 235 F. Supp. at 946, agreed with the reasoning in Gelb, 298 F.2d at 551, that the Congressional “ * * * example of a ‘specific portion’ [as a fractional interest] does not warrant a construction that Congress did not mean to include other instances fairly within the language and the underlying policy.”
In the recent case of Allen v. United States, the widow was entitled to all the trust income for life, but was not expressly empowered to appoint any portion. She was, however, entitled to be paid from corpus on written request an amount “not to exceed” $5,000.00 annually. The Government’s position was that the provision for the annual payments was not a power to appoint a specific portion because she was not given a power to appoint a “fractional or percentile” share. This court relied also upon Gelb, the “leading case on the subject,” in qualifying for the deduction as a “specific portion” the $5,000.00 in question, a limited dollar amount which the Government contends does not fulfill the regulation or statute. The court noted that all courts which had examined “this particular problem” had rejected the Government position.
No reason advanced has persuaded us that we can substantially distinguish the facts and underlying principles involved before us from those in Gelb, and none that we should not do substantially here what the Second Circuit did in Gelb. In this court the Government cites no decision in its favor on the issue here, adding only that “we respectfully submit, however, the Gelb decision is erroneous. * * •» ”
We are unable to agree with the Government’s appraisal of Gelb, and the judgment is affirmed.
. This sub-section provides an exception to the “terminable interest” rule of § 2056 (b) (1), for it provides in pertinent part that the decedent’s estate is entitled to the marital deduction to the extent that the surviving spouse “ * * * is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, * * * ■with power in the surviving spouse to appoint the entire interest, or such specific portion * * (Emphasis added.) This sub-section succeeded Int.Rev. Oode of 1939, § 812(e), added by Revenue Act of 1948, § 361, but § 812(e) (1) (E) allowed the deduction only if the surviving spouse was entitled to “all” the income from the trust corpus.
. Treas. Reg. on Estate Tax § 20.2031-7, 8; 26 C.F.R. § 20.2031-7, 8 (1961).
. This section of the regulations provides in pertinent part:
(c) Definition of specific portion. A partial interest in property is not treated as a specific portion of the entire interest unless the rights of the surviving spouse in income and as to the power constitute a fractional or percentile share of a property interest so that such interest or share in the surviving spouse reflects its proportionate share of the increment or decline in the whole of the property interest to which the income rights and the power relate. Thus, if the right of the spouse to income and the power extend to one-half or a specified percentage of the property, or the equivalent, the interest is considered as a specific portion. On the other hand, if the annual income of the spouse is limited to a specific sum, or if she has a power to appoint only a specific sum out of a larger fund, the interest is not a deductible interest. (Emphasis added.) 26 O.F.R. § 20.-2056(b)-5(e) (1961).
. Int.Rev.Oode of 1954, § 2056(a), (c).
. Int.Rev.Oode of 1954, § 2056(b) (1). See generally Cunha’s Estate v. C.I.R., 279 F.2d 292, 296 (9th Cir.), cert. denied, 364 U.S. 942, 81 S.Ct. 460, 5 L.Ed.2d 373 (1960) (“terminable interest,” § 812(e) of 1939 Code).
. Int.Rev.Oode of 1954, § 2056(b) (5); see note 1 supra.
. Northeastern Pennsylvania Nat. B. & T. Co. v. United States, 235 F.Supp. 941, 943 (M.D.Pa.1964). See also note 1 supra.
. I.e., a restricted amount, the $68,572.00, can never be a “specific portion” of a larger, variable amount, the trust corpus. Brief for the Appellant, pp. 17-18. The substance of this contention appears to have been made, and rejected, in the Gélb, Northeastern Pennsylvania Nat. Bank and Allen decisions discussed infra. Counsel for the Government, on oral argument here, conceded that if the surviving spouse were given a life interest in all the income from a restricted amount, i.e., $68,572.00, plus the requisite power of appointment, this would qualify. While this may not concede the case, it does concede that a limited dollar amount (the capitalized sum here) may be a “specific portion,” and within the “fractional or percentile share” terminology of the regulation.
. Appellee in its claim for refund alleged the trust had a value of $123,541.10.
. The trustee was also directed to pay “all costs, expenses, taxes and charges out of the income or corpus” before making distribution to the widow. Thus her payments might come from corpus.
. This argument was specifically made and rejected in Northeastern Pennsylvania Nat. Bank, see text accompanying note 12; the Gelb court inferentially rejects it by approving actuarially-eomputed “specific” portions.
. Appeal pending, No. 15249, 3rd Cir., Oct., 1965.
. 250 F.Supp. 155 (E.D.Mo.1965).
. Brief for the Appellant, p. 20.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_respond1_1_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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.
WIRE TIE MACH. CO. et al. v. PACIFIC BOX CORPORATION, Limited, et al.
No. 8405.
Circuit Court of Appeals, Ninth Circuit.
March 13, 1939.
Charles M. Fryer, Alfred C. Aurich, and A. W. Boyken, all of San Francisco, Cal., for appellants.
Charles E. Townsend and Roy C. Hack-ley, Jr., both of San Francisco, Cal. (Townsend & Hackley, of San Francisco, Cal., of counsel), for appellees.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
Petition of Pacific Box Corporation for rehearing denied; petition of Wire Tie Machinery Qo. granted as to point sustaining the finding of trial court that the Parker ’259 patent is a “paper patent” and hence limited to the narrowest possible construction.
STEPHENS, Circuit Judge.
This is an appeal from a final decree entered September 13, 1935, by the District Court for the Northern District of California, Southern Division, dismissing a bill of complaint charging infringement of two patents. The two patents are No. 1,875,-259, applied for November 1, 1921, and No. 1,875,260, applied for March 12, 1925, both issued August 30, 1932, in the name of George D. Parker. For convenience here, as in the trial court, these patents will hereinafter be referred to by only the last three digits, viz., ’259 and ’260 respectively, or as the Parker patents.
The original plaintiffs were Clara B. Parker, executrix of the last will of the patentee, George D. Parker, deceased; James M. Leaver, Jr., owner of a half interest in the ’260 patent; and Charles E. Evans; doing business under the name of Parker-Leaver-Evans Wire Tie. Under a contract made in October, 1922, each plaintiff had an equitable interest in the outcome of any suit brought on either Parker patent.
Before trial, Clara B. Parker and Charles E. Evans died, whereupon Donald Parker and Citizens National Trust & Savings Bank of Riverside, California, administrators of the Estate of George D. Parker, deceased; and Minnie Amanda Evans, executrix of the last will and testament of Charles M. Evans, deceased, were substituted as plaintiffs for Clara D. Parker and Charles E. Evans, respectively.
The original defendant was Pacific Box Corporation. At the trial the Eby Manufacturing Company, the manufacturer of the machine charged to infringe the patents in suit, intervenéd and defended the suit.' Unless otherwise herein noted, the original defendant and -the intervenor will be designated as Defendants, and all appellants will occasionally be referred to as Plaintiffs.
Subsequent to the entry of the decree for the defendants, notice was given to James M. Leaver, Jr., by the other plaintiffs to join in the contemplated appeal to this Court, but Leaver failed to join. The judge of the District Court made his order allowing appeal. by the remaining plaintiffs, in the following words: “ * * * it appearing that the remaining plaintiff named in the decree appealed from, James M. Leaver, Jr., has failed and refused to join in said appeal, Now Therefore * * * it is ordered that said appeal be, and the same is hereby allowed * * *
Appellees contend that the appeal should be dismissed, so far as patent ’260 is concerned, for the non-joinder of Leaver as party appellant. It is their contention that the finding of the judge of the District Court with reference to Leaver’s “refusal” to join is not justified; that all the record shows is the notice served on Leaver and his “failure” to join in the appeal; and that this is not the equivalent of summons and severance.
This Court has recognized the rule that on an appeal taken only by some of the persons against whom a joint judgment is rendered, there should be a summons and severance, or its equivalent, and that in the absence of such summons and severance or its equivalent, a motion to dismiss is well taken. Pflueger v. Sherman, 9 Cir., 75 F. 2d 84, 89; Mittry Bros. Const. Co. v. United States, 9 Cir., 75 F.2d 79, 81. However, there appears to be no merit in appellees’ contention that the absence of the record to show a “refusal” as well as a “failure” of Leaver to join in the appeal destroys the effect of the notice given to Leaver and the court order based thereon as the equivalent of summons and severance.
The Supreme Court of the United States in the case of Masterson v. Howard, 10 Wall. 416, 418, 19 L.Ed. 953, 954, in holding that a case must be dismissed in the absence of summons and severance or its equivalent, said, “We do not attach importance to the technical mode of proceeding called summons and severance. We should have held this appeal good if it had appeared in any way by the record that Maverick had been notified in writing to appear, and that he had failed to appear, or, if appearing, had refused to join. * * * We think there should be a written notice and due service, or the record should show his appearance and refusal, and that the court on that ground granted an appeal to the party who prayed for it, as to his own interest.”
In Inglehart v. Stansbury, 151 U.S. 68, 72, 14 S.Ct. 237, 238, 38 L.Ed. 76, 77, the Supreme Court said: “ * * * it is quite clear that Inglehart’s heirs could not appeal alone, without joining the other defendants as appellants, or showing a valid excuse for not joining them. This could only be shown by a summons and severance, or by some equivalent proceeding, such as a request to-the other defendants and their refusal to join in the appeal, or at least a notice to them to appear, and their failure to do so * *
Appellees next contend that the appeal should be dismissed because of the nonjoinder of Parker-Leaver-Evans Wire Tie; that the rule as to summons and severance cannot be invoked as to that concern because there is no showing of service of any notice at all on them.
This contention is likewise without merit, as the complaint shows on its face that the Parker-Leaver-Evans Wire Tie is not a legal entity. The original plaintiffs were designated as “Clara B. Parker, etc., James M. Leaver, Jr., and Charles E. Evans, doing business under the name of Parker-Leaver-Evans Wire Tie.”
After this appeal was taken, the Wire Tie Machinery Company, a California corporation, acquired the interests of the Parker administrators, and was permitted by this court to be substituted for the Parker administrators as party appellant. Ap-pellees complain that the Wire Tie Machinery Company has no position before this court, in view of certain provisions in the agreement between the original plaintiffs prohibiting assignment of their respective interests, without unanimous consent of the parties.
Suffice it to say that this court has already made its order substituting the Wire Tie Machinery Company as party appellant. We will not disturb that order at this time, in the absence of showing that the assignment of the interest of the Parker Estate to the Wire Tie Machinery Company was not made with the consent of the other parties involved.
_ The original complaint herein charged the Pacific Box Corporation as user of a bundle tying machine (hereinafter designated as the Eby machine), built accord-mg to the teaching of Dunn and Eldndge, with infringement of claims 43, 44, 45, 46, 47, 48, 49, 52, 55, 60, 67, 75 and 76 of the 259 patent and of claims 7, 12, 13, 65, 66, 69, 70, 76, 85, 86 and 87 of the 260 pat-en^-
The ’259 patent covers a machine with duplex revolving arms for the purpose of carrying two wires around a bundle simultaneously and tying both of the same m what is known as a fiat knot. The method of binding is what is known as the tight looping method, that is, laying the wire under tension completely around the bundle or ox'
Prior to the construction of the machine covered by this patent, there were being built various types of binding machines, One of such machines, covered by the Thompson patent, No. 1,152,670, issued September 7, 1915, also utilized a rotating arm to carry the wire around the bundle, That machine however, tied the ends of the wire in a corner knot, or what is known as a pigtail knot. The pigtail or corner knot left the twisted wire protruding from the bundle, and created a menace to stevedores handling the packages; furthermore, the twisting of the wire in this manner tended to crystallize the wire, and numerous breakages would occur. These disadvantages were eliminated by the use of the so-called flat knot. Another of such machines, covered by the McChesney patent, No. 1,357,883, issued November 2, 1920, did tie the wire in a flat knot, but that machine utilized what is known as the loose looping method of binding. In other words, that machine has a motor-driven feeding roller that pushes the wire through an open trough that curves around the bun-die. After the wire is thus pushed through the trough loosely around the bundle, a gripper that slides back and forth draws the excess wire back until the loop is pulled out of the trough and shrunk in size to t^le bundle.
The rotating arm of the machine covered by the Thompson patent operated in a uni-directional rotation. In order to provide for an overlapping of the ends of the wire necessary to the tying of a flat knot, Parker in his machine provided for the oscillation of the arm back and forth somewhat in excess of one full revolution,
Twomley, Parker’s technical emplovee, testified that early in 1920 Parker gave him the idea of making his drawing for the >259 machine. The drawings were started about july> i920, and completed in the early part of 1921. The patent was applied for jn November, 1921. The manufacture of the machine was commenced in the early part of 1921 and completed in the latter part of that year. Only one machine was manufactured under that patent,
D who testified for Eb tegtified that he went tQ work for Eb ¡n 0ctob im In DeCember of the same year he b t0 build a bindi maclline. In the summer Qr fall of 1921 he roduced an op_ erating maclline, wWch was completed to the satisfaction of Dunn in February, 1922. It was circularized to the trade in March, l922. That machine also utilized what is known as the tight binding method, but instead of a revolving arm to carry the wire around the bundle, it used a ring gear for that purpose. (Very loosely speaking, a “ring gear” as used in connection with binding machines, consists of a cogged ring, larger in circumference than the box or bundle to be tied. The wire is conducted by this rotating ring around the box or bundle.) The machine tied a corner, or pigtail knot, as distinguished from a flat knot. He applied for a patent for this machine on July 6, 1922. Two corporations ordered the machines, and in October, 1922, Dunn took the two machines to Honolulu to be demonstrated there. They were accepted and paid for. When Dunn was in Honolulu, he had a conference with White, manager of one of the purchasing corporations, who suggested that he preferred to have a flat knot rather than the corner knot as produced by the machine which he purchased. Upon his return from Honolulu, Dunn commenced his drawings to convert his machine into a machine tying a flat knot, Dunn testified that he completed these drawings in the summer of 1923.
There is much conflict in the testimony as to just when the construction of Dunn’s new flat knot machine was actually completed. The trial court found as a fact that “The first full-size flat knot type of Dunn and Eldridge machine was completed and successfully operated in June, 1923”. Plaintiffs contend, however, that the court was in error in this finding.
The following are excerpts from the record with reference to the date of completion of the Dunn and Eldridge flat-knot machine:
Guy A. Dunn testified:
“So on my return to San Francisco, I had thought the thing over coming across from Honolulu, and I immediately discussed the matter with Mr. Eldridge, and gave him my ideas of just how we could coordinate a slot-twisting handle in the place of our corner knot twister. After a short time we saw daylight by a rearrangement of the parts, etc. The result of that was the final Eby flat-knot machine. As nearly as I can remember that was completed in its modification with the slot knot, sometime in 1924. * * * I do not remember exactly who the first one was that we shipped to. It was Mr. Fox. He was one of the first. According to our records, he was the-first one to order, on February 27, 1924. Previous to that we had built and demonstrated the flat knot machine following my return from Honolulu.”
“I testified that after I returned from Honolulu in the fall of 1922 I set out getting up.a flat knotter adaptation of our machine and that at the end of 1923 I had such a machine with a flat knotter adap-fation completed. I can explain the reason for the delay of approximately a year in there before I produced the flat knotter device. We had a number of these first machines under construction, and orders for the same, and Mr. Eby had considerable money involved in this layout, and he said that it was not economical from a financial standpoint to bring out a new model in face of these facts. In view of that fact, we did not press the completion of this machine as rapidly as we otherwise could have done.”
On cross examination, Dunn testified: “I first saw a full automatic wire binding machine tying a flat knot at the Los An-geles Lumber Products Company. That was a Parker machine. That was not pri- or to the actual development on my part of the ®by flat knot machine.”
(Further evidence discloses that this was in August, 1923.)
“Subsequent to my observation of the operation of the BW flat tie machine at San' Pedro (Parker machine, in August, 1923) we did not reconstruct or modify the design of the Eby corner twist machine to embody the disclosure of the BW flat tie machine in that respect. We did not modify it at all. We arranged the mechanism alone as to adapt the new flat tie mechanism, to coordinate with the racking mechanism of the first model”
“I d*d not obtain any benefit in the lme of ideas or suggestions from my observa^on the tie machine operated a* San Pedr°,in tbe designing of the Eby knot machine, the basis 'of this suit,
“It [the twister device on the Eby flat-knot machine] was a movable twister as distinguished from a stationary twister. Very clearly I can state the reasons why I employed a movable twister as distinguished from a stationary twister. That is due to a mechanical reason in regard to the cam. The movable twister required a cam that would not have to synchronize as accurately as it would in the case of a stationary twister, so we adopted the path of least resistance, which means simplicity in machinery. This was subsequent to my observation of the Parker flat knot twister on the machine at San Pedro. That is tnie, but this construction all came to us bef°re I saw tire Parker machine, but after Mr. White had referred the matter to me ln H°no u*u>
“I returned (from Honolulu after the conference with White), and having observed the flat twister of the Parker machine, the thing that actuated me to put in a movable twister when I started in to build a flat knot tying machine was the natural course of sequence of any engineer groping around in the dark for a solution to his problem, and he might go one way and he might go another.”
From the above quoted excerpts from Dunn’s testimony on cross-examination, it seems apparent that Dunn admitted that he did not commence the construction of the Eby flat-knot machine until after his observation of the Parker machine in August, 1923.
Dunn further testified:
“My preliminary drawings for the first Eby' flat type of machine was started immediately after I returned from Honolulu in December, 1922. I cannot recall the exact date when the drawings of said Eby flat type machine were completed. It was sometime in the year 1923, I imagine it was in the summer.”
“I would have to refer to the records for the date when the first flat knot type machine was started in construction. It was held back for several months, we did not put any great pressure on putting the machine out, for the reason that I stated previously, at Mr. Gerrard’s and Mr. Eby’s request.”
“As near as I can recollect at the present time (it took) something like nine or ten months (to complete the first flat tie knot automatic machine from the date I left Honolulu).”
Dunn left Honolulu in December, 1922. Therefore, from the above testimony it seems apparent that the Eby flat-knot machine was not completed until September or October of 1923.
At the trial, in addition to the testimony taken in open court, portions of the testimony of Guy A. Dunn, of John D. Eby, deceased, president of the defendant Eby Machinery Co., of George D. Parker, deceased, the patentee of the Parker machines, an,d of other witnesses taken in various suits on other patents and in a Patent Office interference involving Dunn & Eld-ridge and Leaver, were introduced as exhibits. The following are excerpts from such testimony relative to the date of completion of the Eby flat-knot machine:
John D. Eby testified: “This last machine [flat knot machine] was completed in the spring of 1923 — no, it was sketched' — we commenced on this last machine in the spring of 1923, commenced to plan on this machine in the spring of 1923, and we sold one of these machines in December, 1923, and delivered it the next June.”
Guy A. Dunn testified in one of these previous suits: “I returned from Honolulu in the winter or late fall of 1922, and on arrival in San Francisco I discussed the matter with Mr. Eldridge and we immediately set out to build a flat knot machine. Some of the drawings of that machine were started immediately. They were completed in the early summer or spring of 1923. The construction of the first flat knot machine was held back for several months for the reason that we had quite a few corner knot machines in stock, and quite a bit of money invested, and Mr. Eby objected to proceeding with the building of this flat knot machine until these corner knot machines were sold. I think I said the construction of the first flat knot machine was started about the spring of 1923. I don’t remember exactly when the first flat knot machine was completed.”
“Q. Was your drawing of that machine complete and your design of that machine complete before you saw a Parker automatic wire-tying machine? A. (by Dunn): Mr. Eldridge and I had it thoroughly analyzed and knew exactly what we intended to do.”
The witness at this point was referring to the observation of the Parker machine in San Pedro in August, 1923. It should be noted that Dunn is making no claim at this time that the flat knot machine was completed in August,, 1923, but rather that he “had it thoroughly analyzed and knew exactly what (he) intended to do”.
■ Dunn later testified, “I have checked up on certain definite dates as to the completion of the manufacture and sale of these different machines on a card taken from our records. * * * The first flat knot machine of the type that is shown in the drawings Exhibit U, was built on June 1, 1923. That machine was placed on demonstration before several corporations, * * * but after some hold-back of the machine until we could get rid of the corner knot machine, that we had completed, as I stated yesterday. * * * The first machine of the flat knot type was sold on December 27, 1923, but it had been demonstrated before the trade months previous to that.”
This is the only place in the record where it is stated that June, 1923, was the date of the completion of the flat-knot machine, as distinguished from the drawings.
He later testified, “The flat knot machine and the corner tie machine had both been completed and constructed prior to December of 1923, according to the records.”
This testimony would indicate that Dunn is drawing a distinction between “completion” and “construction”, and that when he referred to the machine being “completed” he meant the drawings were completed.
Dunn testified in another of said previous suits, “Stating what I did subsequent to the completion of the design of the spiral twist machine in the line of designing a wire tying machine, as it became apparent that the market required a machine of higher speed and a knot that would be more desirable, I had the flat, so-called flat-knot in mind for some time, remembering it as the tie on cement barrels, etc., but up to this present time that you speak of I saw no practicable, feasible way of applying it to an automatic machine, but after doing some careful study the. development of the flat knot machine started. The idea came to me of how to apply the tie of a flat knot to an automatic machine in 1923. In my own mind I was perfectly satisfied with the operation of the corner knot machine, and it was a question of applying the flat knot to the other general principles. As near as I can remember at the present time, it took something like nine or ten months.”
The record in one of these previous suits also discloses the following proceedings at the trial: Counsel for plaintiffs objected to the pertinency of certain identification cards posted over the machines exhibited in evidence, on the ground that they were merely hearsay. The Court said, ■“The cards are merely here to identify the machines as exhibited. I cannot see any ■objection to them. It is understood that they are not evidence. They are simply for the purpose of identifying the machine..1 think they should be read into the record."
The card was read into the record: '“This is the improved I)unn and Eldridge wire tying machine. First machine built June 1, 1923; first machine sold December 27, 1923; delivered June 30, d924.”
This latter excerpt from the record is.cited by defendants in their brief as testimony corroborating the finding of the trial court in this case- to the effect that the “first full-size flat knot type of Dunn and Eldridge machine was completed and successfully, operated in June, 1923”. However, as is evident from the above, said card cannot properly be regarded as evidence.
It should further be noted at this point that there is no evidence in the record to the effect that the Eby flat-knot machine was “successfully operated in June, 1923” as found by the trial court.
On March 17, 1924, Eby applied for a patent on his new flat knot machine.
Prior to this time, Twomley, working for Parker, started working on a new" machine, eventually covered by the ’260 patent involved in this suit. This machine makes use of a ring gear for winding the wire around the bundle, in the place of the revolving arms of the ’259 patent. It, as did the ’259 machine, ties the wire in a flat Jcnot.
Twomley testified that he started on his drawings for this ’260 machine in the latter part of 1922, and that he started work on the construction of the machine in the early part of 1923. He corroborated this by the introduction of shop orders for materials used in the machine. Twomley further testified that he completed and successfully operated the machine in June of 1923. This date he was unable to corroborate. In August, 1923, Twomley took the ’260 machine to the Los Angeles Lumber Products Company, at San Pedro, California. It was in operation in the neighborhood for thirty days.
At the same time, one of Eby’s machines (corner knot machine) was also being demonstrated at the Los Angeles Lumber Products Company. It is not clear from the record whether or not the Los Angeles Lumber Products Company was already under contract to purchase the Eby machine at the time Parker’s machine was demonstrated. Twomley testified that the purpose of taking the Parker machine over there was to put it in actual practice and to give it a test fun to develop any weakness that there might be in the machine. He further testified that he did not know whether or not the machine was put out there with the object of making a sale. Dunn, on the other hand, testified that the Eby Machinery Company was asked to demonstrate their machine in the plant of the Los Angeles Lumber Products Company, and when he arrived with the machine he found a Parker machine in competition. It is uncontradicted in the evidence, however, that the Los Angeles Lumber Products Company did purchase one of the Eby machines (corner knot machines), and that the Parker machine went back to Parker’s shop. Twomley testified that at the time of this demonstration the Parker ’260 machine was a “successful machine”, although some slight changes were made thereafter. He testified that those changes were merely safety devices.
The Parker ’260 machine was circularized in “The Timberman” in December, 1923, as appears from a copy of that publication introduced in evidence.
On March 12, 1925, the application for Parker patent ’260 was filed.
During the pendency of the Parker applications for the ’’259 and ’260 patents, various amendments were made by Parker, withdrawing certain claims and adding certain others. Appellees contend that the addition of new claims constituted “new matter” and that Eby and Dunn & Eldridge acquired what the law recognizes as “intervening rights”. This phase of the case will be discussed later in this opinion.
On March 23, 1932, Dunn requested the Patent Office to declare an interference between the Eby application of March 17, 1924 (his flat knot machine) with the Parker ’260 application. He copied for the purpose of this Interference some 32 claims from said Parker patent. Later the first Dunn and Eldridge application, filed July 6, 1922 (original corner knot machine) was added to the Interference on motion of Dunn, and Eldridge. Two more Parker claims were added, making 34 claims in all.
The two Parker patents, ’259 and ’260, were issued by the Patent Office on August 30, 1932.
The Interference above referred to was hotly contested in the Patent Office, and was still pending at the time of the trial of the principal case in the District Court.
Appellants have grouped their assignments of error into seven groups, and we will consider them herein in the same order.
Group one is headed “The Decree should have been confined to the issues.”
In the complaint filed by the plaintiffs. herein, defendants were charged with infringement of 13 o'f the 83 claims of the ’259 patent and of 11 of the 99 claims of the ’260 patent. The decree of the trial court, however, holds that all of the claims of both patents are void, for various reasons, and that Dunn and Eldridge were prior inventors of all that was patentable or that might be’infringed in either of said patents.
Claims of a patent are independent inventions. One may be infringed and others not; one may be valid and the rest invalid. The patent does not stand or fall as a unity. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 301, 319, 29 S.Ct. 495, 53 L.Ed. 805. It is a fundamental concept of equity procedure that adjudication must be based upon, the issues created'by the pleadings. Reynolds v. Stockton, 140 U.S. 254, 265, 11 S.Ct. 773, 776, 35 L.Ed. 464; McEwen et al. v. H. J. Grimes & Co. et al., 6 Cir., 90 F.2d 872, 874.
In the principal case only the claims alleged in the complaint to have been infringed by defendant were in issue. The decree of the District Court, insofar as it went beyond the issues, should be reversed.
Appellants’ second group of errors is to the effect that the District Court erred in not finding invention in the subject matter of the claims in suit.
The District Court decreed that the device disclosed by the ’259 patent involves a mere unpatentable aggregation of parts found and disclosed in the prior art, and more particularly by the patents to Thompson and McChesney. The District Court also decreed that the device disclosed by the ’260 patent is a mere improvement over that disclosed in the Evans patent. (The Evans patent referred to is the Evans Reissue patent, No. 16,292, issued March 16, 1926.)
The ’259 patent is for a rotary arm binding machine, tying a flat knot. The Thompson patent referred to above is also a rotary arm binding machine. The machine does not make a flat knot, but rather a corner, or pigtail knot. The McChes-ney patent referred to is for a binding machine of what is known as the “loose looping” variety. It ties a flat knot.
The ’260 patent utilizes a ring gear in the place of the rotating arm, and also ties a flat knot. The Evans patent also uses the ring gear, but ties a corner, or pigtail knot.
It is the contention of the appellees, and in this they are supported by the findings of the trial court, that all that Parker did was to incorporate the flat knot of the Mc-Chesney patent into the binding machines' disclosed by the Thompson and Evans patents, and that hence patents ’259 and ’260 lack invention.
, Appellants contend that this is error, claiming that the flat knot' mechanism of the McChesney patent could not have been substituted.for the corner knot of the Thompson and Evans patents — that the arm of the binding machine of the Thompson patent and the ring gear of the Evans patent operated in a uni-djrectional rotation, and hence could not provide the proper overlapping of the ends of the wire necessary to make the flat knot. The Parker patents provide for an oscillating movement of the arm of ’259 and the ring gear of ’260.
The Supreme Court in the case of Webster Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177, gives its test as to what constitutes invention as follows r “It may be laid down as a general rule, though perhaps not an invariable one, that if a new combination and arrangement of known elements produce a new and beneficial result, never attained before, it is evidence of invention.”
• In the cited case Webster combined the advantages of Bigelow’s rigid lathe with Weild’s trough or wire bar for supporting the wire. By the combination the Webster loom could produce some' 50 yards a day, when previous looms could never produce more than 40 yards a day. The claim was made in that case that the mere combination of the prior patents did not constitute invention, but the Supreme Court in reply to that contention said, “But it is plain, from the evidence and from the very fact that it was not sooner adopted and used, that it did not, for years, occur in this light to even the most skillful persons. It may have been Under their very eyes, they may álmost be said to have stumbled over it; but they certainly failed to see it, to estimate its value and to bring it into notice”.
The court then gives the test as to what constitutes invention above quoted.
The Webster Loom case, supra, has-been cited by the courts many times in their decisions distinguishing between patentable combinations and mere aggregations.
It is well settled that what constitutes an invention, as distinguished from an aggregation, is a question of fact, and not o.f law. Reinharts, Inc., v. Caterpillar Tractor Co., 9 Cir., 1936, 85 F.2d 628, 630. The court below found as a fact that the claims of the Parker patents in suit did not constitute invention. As a general rule this court will not overturn the findings of fact of the trial judge, since he has had an opportunity of hearing the witnesses testify and is in a better position than this court to judge their veracity. However, in a case such as the case at bar, the question of whether or not the subject matter constitutes invention does not turn upon the truth or falsity of the testimony of the witnesses. Their testimony of necessity is as to their opinions of whether it required more than mechanical skill to effect the combination of parts.
Applying the test laid down by the Supreme Court in the Webster Loom case, supra, we are of the opinion that the subject matter of the Parker patents did constitute invention. It is uncontroverted that never before had anyone produced a fully automatic wire binding machine that tied a flat knot. Dunn, “a skilled mechanic and designer”, who built the defendants’ machine, testified that at the time of his trip to Honolulu (where White suggested to him the desirability of having a binding machine that tied a flat knot) he knew “no practicable, feasible way of applying it (a flat knot) to an automatic machine” and that it took him something like nine or ten months to work it out for Eby.
One of the assignments of error in this group is that the said court erred in concluding as a matter of law, adjudging and decreeing that claim 69 of said patent ’260 is invalid as not readable upon the' dislosure of the patentee thereof in the application for said patent.
Claim 69 reads as follows: “In a wire tying machine, a wire guiding ring rotatable to describe a path encircling an object to be tied, means for supplying wire under tension to said ring, means for rotating the ring to effect encircling of the wire about the object so that one portion of the wire overlaps another portion thereof in a plane substantially parallel to the adjacent surface of the object, and means located within the periphery of said ring for intertwisting the overlapping portions to provide a substantially flat knot.”
The District Court in its Memorandum gives as its reason for such finding that “One portion of the wire does not ‘overlap another in a plane substantially parallel to the adjacent surface of the object.’”
In this connection, Roemer, testifying for the defendant, testified: “Claim 69 is a claim which I doubt reads on either the Parker machine or the Eby machine. This claim, which defines a ring gear type of machine, calls for means for rotating the ring to effect encircling of the wire about the object, so that one portion of the wire overlaps another portion thereof in a plane substantially parallel to the adjacent surface of the object. By that I understand that the slotted twister would have to be placed with its slot parallel to the face of the object at the time the wire was placed in the twister. By reference to the Parker patent 260 it can be seen that in the receiving position of the slotted pinion the slot is directed away from the adjacent surface of the bundle. This is likewise true in the Eby machine, as is clearly evidenced in the model, Defendants’ Exhibit B, wherein the slot is faced away from the bundle at the time it receives a wife. With this in view, I do not see how it is possible for one portion of the wire to overlap another portion thereof in a plane substantially parallel to the adjacent surface of the object. As a matter of fact, the wire in both Parker and Eby overlaps in a plane which is exactly perpendicular to the adjacent face of the bundle.”
We cannot agree with this view of claim 69. An examination of the patent will show that the wires do lie together in the slot of the twister pinion, and that that slot (or the bottom of it where the wires lie) is in a plane substantially parallel to the adjacent surface of the bundle. We think it reasonably accurate to say that one portion of the wire overlaps another portion thereof in a plane substantially parallel to the adjacent surface of the bundle.
Appellants’ third group of errors are to the effect that the District Court should have found that Parker — not Dunn and Eldridge — was the inventor of the subject matter of the claims in suit.
We think the record definitely establishes that Parker was the first inventor of a fully automatic binding machine
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
AMERICAN DAIRY QUEEN CORPORATION, Plaintiff-Appellee, v. BROWN-PORT COMPANY, a Wisconsin limited partnership, Defendant-Appellant.
No. 79-2168.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 14, 1980.
Decided March 25, 1980.
Alan Marcuvitz, Milwaukee, Wis., for defendant-appellant.
Wayne E, Babler, Jr., Quarles & Brady, Milwaukee, Wis., for plaintiff-appellee.
Before BAUER, WOOD, and CUDAHY, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Brown-Port Company (Brown-Port) appeals the entry by the district court of a preliminary injunction enjoining Brown-Port from breaching an exclusive use clause contained in a shopping center lease that it executed in favor of its lessee, American Dairy Queen Corporation (DQ). Our review is narrowly limited to the question whether issuance of the preliminary injunction was an abuse of discretion. Ideal Industries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1022 (7th Cir. 1979). Finding that it was, we reverse and remand for further proceedings consistent with this opinion.
Brown-Port, owner and operator of the Brown-Port Shopping Center in suburban Milwaukee, leased commercial premises therein to DQ under a lease, which commenced in 1969 and, assuming exercise by DQ of its two five-year options, extends through 1994. Although the lease is quite detailed, the only provision relevant to the dispositive issue is paragraph 29(b), which grants DQ the exclusive right to conduct a “retail store for the sale of ice cream and dessert products, sandwiches and other foods customarily sold in the normal fast food service business.” That paragraph also contains Brown-Port’s covenant that it will not lease or permit the use of any of its property within three miles of the premises for any such purpose or use. Shortly after securing the lease, DQ executed a sublease, which incorporates by reference the terms and conditions of the lease, to G.N.R., Inc. (GNR), a DQ franchisee. GNR then operated a Dairy Queen retail store on the leased premises until 1975 when, by mutual agreement, DQ and GNR terminated their franchise agreement. GNR, however, continued occupancy of the premises under the sublease but changed the name of its store to the “Fudge-Pump.” The Fudge-Pump, like its predecessor, is a fast-food retail store within the meaning of paragraph 29(b).
In early 1979 Brown-Port leased to the McDonald’s Corporation (McDonald’s) premises within the Brown-Port Shopping Center for use as a McDonald’s restaurant. DQ promptly filed this diversity suit in the district court, seeking enforcement of paragraph 29(b), and moved for a preliminary injunction, Fed.R.Civ.P. 65, to enjoin Brown-Port from allowing occupancy in the shopping center by any prospective tenant whose occupancy would violate that paragraph. GNR, however, did not join in the suit, presumably because it was not a party to the main lease. Following an evidentiary hearing, Judge Warren entered a Memorandum and Order enjoining Brown-Port “from leasing to McDonald’s Corporation or permitting McDonald’s Corporation to occupy a space in the Brown-Port Shopping Center. . .
The law in this circuit is clear:
The universally accepted standard for the appellate test of a preliminary injunction is whether there was an abuse of discretion in granting or denying it. The discretion exercised by the district court is measured against several prerequisites: (1) the plaintiffs have no adequate remedy at law and will be irreparably harmed if the injunction does not issue; (2) the threatened injury to the plaintiffs outweighs the threatened harm the injunction may inflict on the defendant; (3) the plaintiffs have at least a reasonable likelihood of success on the merits; and (4) the granting of a preliminary injunction will not disserve the public interest. A preliminary injunction is an extraordinary remedy which is not available unless the plaintiffs carry their burden of persuasion as to all of the prerequisites.
Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976) (footnote and citations omitted). Our review focuses on the question whether the district court abused its discretion by issuing the preliminary injunction despite its finding that DQ had available an adequate remedy at law.
The district court reasoned that because of the sublessor-sublessee relationship between DQ and GNR, DQ could assert and rely upon GNR’s likely destruction absent the preliminary injunction to satisfy the first prong of the Fox Valley prerequisites. Finding no case authority for the notion that a plaintiff can secure injunctive relief solely to prevent irreparable harm to a non-party, the court analogized to cases that have recognized the right of the lessee/sublessor to enforce the covenant of quiet enjoyment, granted under the main lease, when the lessor interferes with the sublessee. See Sherwood Medical Industries, Inc. v. Building Leasing Corp., 527 S.W.2d 407 (Mo.App.1975); Tennes v. American Building Co., 72 Wash. 644, 131 P. 201 (1913). A breach personal to the lessee/sublessor occurs under these circumstances because the right of quiet enjoyment includes, absent a lease clause to the contrary, the right to be free of the lessor’s intentional interference with full enjoyment and use of the leased premises, see Tiffany, Real Property § 1012 (3d ed. 1975), and full enjoyment includes the right to freely sublet. See American Book Co. v. Yeshiva University Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (Sup.Ct.1969); Carson v. Imperial “400” National, Inc., 267 N.C. 229, 147 S.E.2d 898 (1966). A lessor who interferes with a sub-lessee’s quiet enjoyment is therefore interfering not with the sublessee’s right, for that is extended to it only by the lessee/sublessor, but with the right of the lessee/sublessor, who in the exercise of that right has authorized another by sublease to be in possession.
The covenant of quiet enjoyment, though much broader in scope, is strikingly similar to the exclusivity clause here at issue. In a commercial lease, the covenant protects the lessee or sublessee, respectively, from actions of the lessor or sublessor that interfere unreasonably with the lessee’s or sublessee’s ability to conduct business. See Pollock v. Morelli, 245 Pa.Super. 388, 369 A.2d 458 (1976). An exclusivity clause, on the other hand, protects its beneficiary from a specific kind of business interference. Such clauses are commonly inserted in commercial leases when the lessee anticipates that the presence of a similar business on nearby premises owned by the lessor will interfere with the lessee’s ability to conduct business. A lessee under a lease containing an exclusivity clause expects that the use to which it puts the premises will be exclusive within the reasonable limits of the clause. The violation of that expectancy constitutes the breach.
Where a sublease clouds the picture, a breach of either a covenant of quiet enjoyment or an exclusivity clause injures the sublessee, as the party in possession, most directly. However, in either case, the lessee/sublessor, as the party in privity with the lessor, remains the holder of the underlying right. Since the lessor’s interference constitutes the breach, a suit by the lessee/sublessor against the lessor is consistent with the well-established rule of standing that only the holder of a right may sue for its infringement. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 494, 87 L.Ed. 603 (1943). The assumptions implicit in the district court’s decision, however, are inconsistent with that rule. Merely because the lessee/sublessor has standing to sue does not mean that recovery or injunctive relief can be based on actual or potential injury to the sublessee, a nonparty to the suit. In none of the cited cases, see pp. 257-258 supra, was the lessee/sublessor allowed to recover damages for other than losses that it incurred nor to secure injunctive relief to prevent other than irreparable harm to itself.
DQ, as the holder of the exclusivity right, is free to sue Brown-Port for damages, which, if appropriate, shall be measured solely by DQ’s injury, not GNR’s injury. DQ is free also to proceed with its suit seeking permanent injunctive relief similar in scope to the preliminary injunction. But the district court’s discretion is limited; an injunction — whether preliminary or permanent — may issue only if DQ persuades the court that DQ will suffer substantial injury not remediable at law if the injunction is denied. Since DQ did not meet that burden in the proceeding below — a finding we accept as not clearly erroneous — issuance of the preliminary injunction was an abuse of discretion. Accordingly, the district court is directed forthwith to dissolve the preliminary injunction.
DQ raised for the first time on appeal the argument that its exclusive right under the lease to conduct a fast-foods retail store is a valuable right incapable of reasonably certain calculation and therefore not remediable at law. We are not in a position to pass on the merits of this contention, nor assuming its sufficiency, on the question whether an injunction — preliminary or permanent — • should issue. When the district court hears this case on the merits, or beforehand if a preliminary injunction is sought on this basis, the court may consider the question whether DQ likely will suffer substantial irreparable injury to its leasehold interest in exclusivity. Upon that finding or another finding of irreparable injury consistent with this opinion, the district court, provided the other injunctive prerequisites are satisfied, has discretion to issue another preliminary injunction, or upon a hearing on the merits, a permanent injunction similar in scope to the original preliminary injunction. We recognize that if DQ’s argument is meritorious, its leasehold interest may be irreparably harmed before further proceedings are undertaken. Accordingly, the district court upon dissolution of the preliminary injunction may desire to hear and decide this case expeditiously. Circuit Rule 18 shall not apply.
REVERSED AND REMANDED WITH DIRECTIONS.
. Paragraph 29(b) contains a proviso that rights granted thereunder are contingent upon DQ’s conformity with all terms of the lease. Paragraph 22 forbids DQ from subletting the premises without Brown-Port’s prior written consent.
Brown-Port contends that execution of the sublease was in breach of paragraph 22 and that consequently it is free of the burdens of paragraph 29(b). The district court agreed that execution of the sublease was in breach of paragraph 22 but disagreed with Brown-Port’s characterization of the consequences. Brown-Port was aware of the sublease yet collected rent under the lease for nearly eight years without objection. As we said recently, “waiver occurs when an obligor manifests an intent not to require an obligee to strictly comply with a contractual duty.” Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208, 213 (7th Cir. 1979), cert. denied,-U.S.-, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980). Under the circumstances, Brown-Port cannot rely upon a stale breach of paragraph 22 to avoid its obligations under paragraph 29(b).
. The district court found that DQ’s potential injury from Brown-Port’s breach of paragraph 29(b) is the loss of rent payments. Monthly rent under the sublease is $825 or 7% of GNR’s gross sales, whichever is greater. Since monthly rent under the main lease is $825, DQ will incur losses only when and to the extent that 7% of GNR’s monthly gross sales exceed $825. Since the Fudge-Pump is a well-established business, its future profits are amenable to reasonably accurate calculation. See D. Dobbs, Remedies § 3.3 at 154 (1973). There being an adequate remedy at law, the district court found that DQ would not suffer irreparable harm if the preliminary injunction did not issue. In light of the facts of this case and the limited grounds upon which DQ argued this point, see p. 259 infra, this finding was within the district court’s discretion.
. Assuming, of course, that the lease, as here, does not provide that its provisions shall inure to the benefit of the sublessee.
. Our holding today is a limited one: the “no adequate remedy at law/irreparable injury” prerequisite is not satisfied by the harm that may befall a nonparty. We do not suggest that consideration of the effects upon nonparties of the grant or denial of injunctive relief is inappropriate. A district court sitting in the role traditionally occupied by a court of equity retains discretion to consider, as appropriate, all factors bearing on the public interest or on nonparties. See Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975); Middletown Mfg. Co. v. Super Sagless Corp., 382 F.Supp. 979 (N.D. Miss. 1974), aff'd, 515 F.2d 509 (5th Cir. 1975). Nothing in this opinion shall preclude the district court on remand from considering the fate of GNR.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
SABLE COMMUNICATIONS OF CALIFORNIA, INC. v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 88-515.
Argued April 19, 1989
Decided June 23, 1989
White, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 131. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and Stevens, JJ., joined, post, p. 133.
Richard G. Taranto argued the cause for appellees in No. 88-515 and for appellants in No. 88-525. With him on the briefs were Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Wallace, Barbara L. Herwig, Jacob M. Lewis, and Diane S. Killory.
Lawrence H. Tribe argued the cause for appellant in No. 88-515 and for appellee in No. 88-525. With him on the brief were Brian Stuart Koukoutchos, Lawrence E. Abelman, Norman S. Beier, Richard K. Simon, and Lee L. Blackman.
Together with No. 88-525, Federal Communications Commission et al. v. Sable Communications of California, Inc., also on appeal from the same court.
Briefs of amici curiae were filed for Minority Members of the Committee on Energy and Commerce of the United States House of Representatives by John J. Adams; for Action for Children’s Television et al. by Timothy B. Dyk, Henry Getter, John A. Powell, C. Edwin Baker, Susan M. Liss, Jan G. Levine, Howard Monderer, Lois J. Schiffer, Karen Christensen, Andrew Jay Schwartzman, Paula A. Jameson, Nancy H. Hendry, J. Laurent Scharff, Jane E. Kirtley, Bruce W. Sanford, and Robert A. Beizer; for the American Family Association, Inc., by Peggy M. Coleman; for the Association of Interactive Information Providers by Earl Nicholas Selby and William Bennett Turner; for Citizens for Decency through Law, Inc., by Benjamin W. Butt; for Home Box Office, Inc., by Daniel M. Waggoner, Stuart R. Dunwoody, and Harold E. Akselrad; for the Pacifica Foundation by William J. Byrnes; for Morality in Media, Inc., by Paul J. McGeady; for the San Francisco AIDS Foundation by Leonard Graff; for the United States Catholic Conference by Mark E. Chopko; for John W. Olivo, Jr., by Robert T. Perry; and for Jane Roe et al. by Bruce J. Ennis.
Justice White
delivered the opinion of the Court.
The issue before us is the constitutionality of § 223(b) of the Communications Act of 1934. 47 U. S. C. § 223(b) (1982 ed., Supp. V). The statute, as amended in 1988, imposes an outright ban on indecent as well as obscene interstate commercial telephone messages. The District Court upheld the prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. We affirm the District Court in both respects.
HH
In 1983, Sable Communications, Inc., a Los Angeles-based affiliate of Carlin Communications, Inc., began offering sexually oriented prerecorded telephone messages (popularly known as “dial-a-porn”) through the Pacific Bell telephone network. In order to provide the messages, Sable arranged with Pacific Bell to use special telephone lines, designed to handle large volumes of calls simultaneously. Those who called the adult message number were charged a special fee. The fee was collected by Pacific Bell and divided between the phone company and the message provider. Callers outside the Los Angeles metropolitan area could reach the number by means of a long-distance toll call to the Los Angeles area code.
In 1988, Sable brought suit in District Court seeking declaratory and injunctive relief against enforcement of the recently amended § 223(b). The 1988 amendments to the statute imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. Sable brought this action to enjoin the Federal Communications Commission (FCC) and the Justice Department from initiating any criminal investigation or prosecution, civil action or administrative proceeding under the statute. Sable also sought a declaratory judgment, challenging the indecency and the obscenity provisions of the amended § 223(b) as unconstitutional, chiefly under the First and Fourteenth Amendments to the Constitution.
The District Court found that a concrete controversy existed and that Sable met the irreparable injury requirement for issuance of a preliminary injunction under Elrod v. Burns, 427 U. S. 347, 373 (1976). 692 F. Supp. 1208, 1209 (CD Cal. 1988). The District Court denied Sable’s request for a preliminary injunction against enforcement of the statute’s ban on obscene telephone messages, rejecting the argument that the statute was unconstitutional because it created a national standard of obscenity. The District Court, however, struck down the “indecent speech” provision of § 223(b), holding that in this respect the statute was overbroad and unconstitutional and that this result was consistent with FCC v. Pacifica Foundation, 438 U. S. 726 (1978). “While the government unquestionably has a legitimate interest in, e. g., protecting children from exposure to indecent dial-a-porn messages, § 223(b) is not narrowly drawn to achieve any such purpose. Its flat-out ban of indecent speech is contrary to the First Amendment.” 692 F. Supp., at 1209. Therefore, the court issued a preliminary injunction prohibiting enforcement of § 223(b) with respect to any communication alleged to be “indecent.”
We noted probable jurisdiction on Sable’s appeal of the obscenity ruling (No. 88-515); we also noted probable jurisdiction on the federal parties’ cross-appeal of the preliminary injunction holding the statute unconstitutional with respect to its ban on indecent speech (No. 88-525). 488 U. S. 1003 (1989).
II
While dial-a-porn services are a creature of this decade, the medium, in its brief history, has been the subject of much litigation and the object of a series of attempts at regulation. The first litigation involving dial-a-porn was brought under 82 Stat. 112, 47 U. S. C. § 223, which proscribed knowingly “permitting a telephone under [one’s] control” to be used to make “any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent.” However, the FCC concluded in an administrative action that the existing law did not cover dial-a-porn. In re Application for Review of Complaint Filed by Peter F. Cohalan, FCC File No. E-83-14 (memorandum opinions and orders adopted May 13, 1983).
In reaction to that FCC determination, Congress made its first effort explicitly to address “dial-a-porn” when it added a subsection 223(b) to the 1934 Communications Act. The provision, which was the predecessor to the amendment at issue in this case, pertained directly to sexually oriented commercial telephone messages and sought to restrict the access of minors to dial-a-porn. The relevant provision of the Act, Federal Communications Commission Authorization Act of 1983, Pub. L. 98-214, §8(b), 97 Stat. 1470, made it a crime to use telephone facilities to make “obscene or indecent” interstate telephone communications “for commercial purposes to any person under eighteen years of age or to any other person without that person’s consent.” 47 U. S. C. §223(b)(1) (A) (1982 ed., Supp. V). The statute criminalized commercial transmission of sexually oriented communications to minors and required the FCC to promulgate regulations laying out the means by which dial-a-porn sponsors could screen out underaged callers. § 223(b)(2). The enactment provided that it would be a defense to prosecution that the defendant restricted access to adults only, in accordance with procedures established by the FCC. The statute did not criminalize sexually oriented messages to adults, whether the messages were obscene or indecent.
The FCC initially promulgated regulations that would have established a defense to message providers operating only between the hours of 9 p.m. and 8 a.m. eastern time (time channeling) and to providers requiring payment by credit card (screening) before transmission of the dial-a-porn message. Restrictions on Obscene or Indecent Telephone Message Services, 47 CFR §64.201 (1988). In Carlin Communications, Inc. v. FCC, 749 F. 2d 113 (1984) (Carlin I), the Court of Appeals for the Second Circuit set aside the time channeling regulations and remanded to the FCC to examine other alternatives, concluding that the operating hours requirement was “both overinclusive and underinclusive” because it denied “access to adults between certain hours, but not to youths who can easily pick up a private or public telephone and call dial-a-porn during the remaining hours.” Id., at 121. The Court of Appeals did not reach the constitutionality of the underlying legislation.
In 1985, the FCC promulgated new regulations which continued to permit credit card payment as a defense to prosecution. Instead of time restrictions, however, the Commission added a defense based on use of access codes (user identification codes). Thus, it would be a defense to prosecution under § 223(b) if the defendant, before transmission of the message, restricted customer access by requiring either payment by credit card or authorization by access or identification code. 50 Fed. Reg. 42699, 42705 (1985). The regulations required each dial-a-porn vendor to develop an identification code data base and implementation scheme. Callers would be required to provide an access number for identification (or a credit card) before receiving the message. The access code would be received through the mail after the message provider reviewed the application and concluded through a written age ascertainment procedure that the applicant was at least 18 years of age. The FCC rejected a proposal for “exchange blocking” which would block or screen telephone numbers at the customer’s premises or at the telephone company offices. In Carlin Communications, Inc. v. FCC, 787 F. 2d 846 (CA2 1986) (Carlin II), the Court of Appeals set aside the new regulations because of the FCC’s failure adequately to consider customer premises blocking. Again, the constitutionality of the underlying legislation was not addressed.
The FCC then promulgated a third set of regulations, which again rejected customer premises blocking but added to the prior defenses of credit card payment and access code use a third defense: message scrambling. 52 Fed. Reg. 17760 (1987). Under this system, providers would scramble the message, which would then be unintelligible without the use of a descrambler, the sale of which would be limited to adults. On January 15, 1988, in Carlin Communications, Inc. v. FCC, 837 F. 2d 546 (Carlin III), cert. denied, 488 U. S. 924 (1988), the Court of Appeals for the Second Circuit held that the new regulations, which made access codes, along with credit card payments and scrambled messages, defenses to prosecution under § 223(b) for dial-a-porn providers, were supported by the evidence, had been properly arrived at, and were a “feasible and effective way to serve” the “compelling state interest” in protecting minors, 837 F. 2d, at 555; but the Court directed the FCC to reopen proceedings if a less restrictive technology became available. The Court of Appeals, however, this time reaching the constitutionality of the statute, invalidated § 223(b) insofar as it sought to apply to nonobscene speech. Id., at 560, 561.
Thereafter, in April 1988, Congress amended § 223(b) of the Communications Act to prohibit indecent as well as obscene interstate commercial telephone communications directed to any person regardless of age. The amended statute, which took effect on July 1, 1988, also eliminated the requirement that the FCC promulgate regulations for restricting access to minors since a total ban was imposed on dial-a-porn, making it illegal for adults, as well as children, to have access to the sexually explicit messages, Pub. L. 100-297, 102 Stat. 424. It was this version of the statute that was in effect when Sable commenced this action.
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In the ruling at issue in No. 88-515, the District Court upheld § 223(b)’s prohibition of obscene telephone messages as constitutional. We agree with that judgment. In contrast to the prohibition on indecent communications, there is no constitutional barrier to the ban on obscene dial-a-porn recordings. We have repeatedly held that the protection of the First Amendment does not extend to obscene speech. See, e. g., Paris Adult Theatre I v. Slaton, 413 U. S. 49, 69 (1973). The cases before us today do not require us to decide what is obscene or what is indecent but rather to determine whether Congress is empowered to prohibit transmission of obscene telephonic communications.
In its facial challenge to the statute, Sable argues that the legislation creates an impermissible national standard of obscenity, and that it places message senders in a “double bind” by compelling them to tailor all their messages to the least tolerant community.
We do not read § 223(b) as contravening the “contemporary community standards” requirement of Miller v. California, 413 U. S. 15 (1973). Section 223(b) no more establishes a “national standard” of obscenity than do federal statutes prohibiting the mailing of obscene materials, 18 U. S. C. § 1461, see Hamling v. United States, 418 U. S. 87 (1974), or the broadcasting of obscene messages, 18 U. S. C. §1464. In United States v. Reidel, 402 U. S. 351 (1971), we said that Congress could prohibit the use of the mails for commercial distribution of materials properly classifiable as obscene, even though those materials weré being distributed to willing adults who stated that they were adults. Similarly, we hold today that there is no constitutional stricture against Congress’ prohibiting the interstate transmission of obscene commercial telephone recordings.
We stated in United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973), that the Miller standards, including the “contemporary community standards” formulation, apply to federal legislation. As we have said before, the fact that “distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity.” Hamling v. United States, supra, at 106.
Furthermore, Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve. While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages. Whether Sable chooses to hire operators to determine the source of the calls or engages with the telephone company to arrange for the screening and blocking of out-of-area calls or finds another means for providing messages compatible with community standards is a decision for the message provider to make. There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sable’s audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages.
IV
In No. 88-525, the District Court concluded that while the Government has a legitimate interest in protecting children from exposure to indecent dial-a-porn messages, § 223(b) was not sufficiently narrowly drawn to serve that purpose and thus violated the First Amendment. We agree.
Sexual expression which is indecent but not obscene is protected by the First Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); New York v. Ferber, 458 U. S. 747, 756-757 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor ofOradell, 425 U. S., at 620; First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978).” Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 637 (1980). It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.
In Butler v. Michigan, 352 U. S. 380 (1957), a unanimous Court reversed a conviction under a statute which made it an offense to make available to the general public materials found to have a potentially harmful influence on minors. The Court found the law to be insufficiently tailored since it denied adults their free speech rights by allowing them to read only what was acceptable for children. As Justice Frankfurter said in that case, “[s]urely this is to bum the house to roast the pig.” Id., at 383. In our judgment, this case, like Butler, presents us with “legislation not reasonably restricted to the evil with which it is said to deal.” Ibid.
In attempting to justify the complete ban and criminalization of the indecent commercial telephone communications with adults as well as minors, the federal parties rely on FCC v. Pacifica Foundation, 438 U. S. 726 (1978), a case in which the Court considered whether the FCC has the power to regulate a radio broadcast that is indecent but not obscene. In an emphatically narrow holding, the Pacifica Court concluded that special treatment of indecent broadcasting was justified.
Pacifica is readily distinguishable from these cases, most obviously because it did not involve a total ban on broadcasting indecent material. The FCC rule was not “ ‘intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.’” Pacifica, supra, at 733, quoting Pacifica Foundation, 59 F. C. C. 2d 892 (1976). The issue of a total ban was not before the Court. 438 U. S., at 750, n. 28.
The Pacifica opinion also relied on the “unique” attributes of broadcasting, noting that broadcasting is “uniquely pervasive,” can intrude on the privacy of the home without prior warning as to program content, and is “uniquely accessible to children, even those too young to read.” Id., at 748-749. The private, commercial telephone communications at issue here are substantially different from the public radio broadcast at issue in Pacifica. In contrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it medium requires the listener to take affirmative steps to receive the communication. There is no “captive audience” problem here; callers will generally not be unwilling listeners. The context of dial-in services, where a caller seeks and is willing to pay for the communication, is manifestly different from a situation in which a listener does not want the received message. Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message. Unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it.
The Court in Pacifica was careful “to emphasize the narrowness of [its] holding.” Id., at 750. As we did in Bolger v. Youngs Drug Products Corp., 463 U. S. 60 (1983), we distinguish Pacifica from the cases before us and reiterate that “the government may not ‘reduce the adult population ... to . . . only what is fit for children.’” 463 U. S., at 73, quoting Butler v. Michigan, supra, at 383.
The federal parties nevertheless argue that the total ban on indecent commercial telephone communications is justified because nothing less could prevent children from gaining access to such messages. We find the argument quite unpersuasive. The FCC, after lengthy proceedings, determined that its credit card, access code, and scrambling rules were a satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors. The Court of Appeals, after careful consideration, agreed that these rules represented a “feasible and effective” way to serve the Government’s compelling interest in protecting children. 837 F. 2d, at 555.
The federal parties now insist that the rules would not be effective enough — that enterprising youngsters could and would evade the rules and gain access to communications from which they should be shielded. There is no evidence in the record before us to that effect, nor could there be since the FCC’s implementation of § 223(b) prior to its 1988 amendment has never been tested over time. In this respect, the federal parties assert that in amending § 223(b) in 1988, Congress expressed its view that there was not a sufficiently effective way to protect minors short of the total ban that it enacted. The federal parties claim that we must give deference to that judgment.
To the extent that the federal parties suggest that we should defer to Congress’ conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment. “Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.” Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 843 (1978). The federal parties, however, also urge us to defer to the factual findings by Congress relevant to resolving the constitutional issue; they rely on Walters v. National Association of Radiation Survivors, 473 U. S. 305, 331, n. 12 (1985), and Rostker v. Goldberg, 453 U. S. 57, 72-73 (1981). Beyond the fact that whatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law, our answer is that the congressional record contains no legislative findings that would justify us in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban, to achieve the Government’s interest in protecting minors.
There is no doubt Congress enacted a total ban on both obscene and indecent telephone communications. But aside from conclusory statements during the debates by proponents of the bill, as well as similar assertions in hearings on a substantially identical bill the year before, H. R. 1786, that under the FCC regulations minors could still have access to dial-a-porn messages, the congressional record presented to us contains no evidence as to how effective or ineffective the FCC’s most recent regulations were or might prove to be. It may well be that there is no fail-safe method of guaranteeing that never will a minor be able to access the dial-a-porn system. The bill that was enacted, however, was introduced on the floor; nor was there a committee report on the bill from which the language of the enacted bill was taken. No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages. On the other hand, in the hearings on H. R. 1786, the Committee heard testimony from the FCC and other witnesses that the FCC rules would be effective and should be tried out in practice. Furthermore, at the conclusion of the hearing, the Chairman of the Subcommittee suggested consultation looking toward “drafting a piece of legislation that will pass constitutional muster, while at the same time providing for the practical relief which families and groups are looking for.” Hearings, at 235. The bill never emerged from Committee.
For all we know from this record, the FCC’s technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case, it seems to us that § 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages. Under our precedents, § 223(b), in its present form, has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear. It is another case of “burn[ing] the house to roast the pig.” Butler v. Michigan, 352 U. S., at 383.
Because the statute’s denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages, we hold that the ban does not survive constitutional scrutiny.
Accordingly, we affirm the judgment of the District Court in Nos. 88-515 and 88-525.
It is so ordered.
A typical prerecorded message lasts anywhere from 30 seconds to two minutes and may be called by up to 50,000 people hourly through a single telephone number. Comment, Telephones, Sex, and the First Amendment, 33 UCLA L. Rev. 1221, 1223 (1986).
Sable appealed the District Court ruling to the Court of Appeals for the Ninth Circuit, concurrently filing an emergency motion for an injunction pending appeal. The District Court entered an order temporarily enjoining the FCC from enforcing the statute during the pendency of the appeal. After the federal parties filed their notice of appeal to this Court from the District Court’s grant of the preliminary injunction as to “indecent” communication, the Court of Appeals for the Ninth Circuit entered an order directing Sable either to file a motion for voluntary dismissal or to show cause why the appeal should not be dismissed for lack of jurisdiction. Sable filed an ex parte application to this Court for an injunction pending appeal, as well as a return on the Court of Appeals’ order to show cause. The Court of Appeals entered an order dismissing the appeal since the filing of a direct appeal by the FCC had the effect of transferring Sable’s appeal to this Court.
Dial-a-porn is big business. The dial-a-porn service in New York City alone received six to seven million calls a month for the 6-month period ending in April 1985. Carlin Communications, Inc. v. FCC, 787 F. 2d 846, 848 (CA2 1986).
“‘(b)(1) Whoever knowingly—
“(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene or indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
“(B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A),
“shall be fined not more than $50,000 or imprisoned not more than six months, or both.”
After Sable and the federal parties filed their jurisdictional statements with this Court, but before we noted probable jurisdiction, § 223(b) was again revised by Congress in § 7524 of the Child Protection and Obscenity Enforcement Act of 1988, § 7524, 102 Stat. 4502, which was enacted as Title VII, Subtitle N, of the Anti-Drug Abuse Act of 1988, Pub. L. 100-690 (codified at 47 U. S. C. § 223(b) (1988 ed.)). This most recent legislation, signed into law on November 18, 1988, places the prohibition against obscene commercial telephone messages in a subsection separate from that containing the prohibition against indecent messages. In addition, under the new law, the prohibition against obscene or indecent telephone messages is enforceable only through criminal penalties and no longer through administrative proceedings by the FCC.
Section 223(b) of the Communications Act of 1934, as amended by § 7524 of the Child Protection and Obscenity Enforcement Act of 1988, states in pertinent part:
“(b)(1) Whoever knowingly—
“(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
“(B) permits any telephone facility under such person’s control to be used for an activity prohibited by clause (i),
“shall be fined in accordance with title 18 of the United States Code, or imprisoned not more than two years, or both.
“(2) Whoever knowingly—
“(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
“(B) permits any telephone facility under such person’s control to be used for an activity prohibited by clause (i),
“shall be fined not more than $50,000 or imprisoned not more than six months, or both.” 102 Stat. 4502.
Since the substantive prohibitions under this amendment remain the same, this case is not moot.
In its jurisdictional statement, Sable also argued that the prohibition on obscene calls is not severable from the ban on indecent messages. This last claim was not renewed in Sable’s brief on the merits, presumably as a result of the subsequent modification of the statute in which Congress specifically placed the ban on obscene commercial telephone messages in a subsection separate from the prohibition against indecent messages. Thus, the severability question is no longer before us.
See e. g., 134 Cong. Rec. 7331 (1988) (statement of Rep. Bliley); id., at 7336 (statement of Rep. Coats); id., at 7330 (statement of Rep. Hall; id., at 7599 (statement of Sen. Hatch).
Telephone Decency Act of 1987: Hearing on H. R. 1786 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th Cong., 1st Sess., 2, 15 (1987) (Rep. Bliley) (Hearings); id,., at 18 (Rep. Coats); id., at 20 (Rep. Tauke).
These hearings were held while Carlin III was pending before the Court of Appeals for the Second Circuit.
See, e. g., Hearings, at 129, 130, 132-133, 195-196, 198-200, 230-231.
In the Hearings on H. R. 1786, id., at 231-232, the following colloquy occurred between Congressman Nielson and Mr. Ward, a United States Attorney interested in § 223(b) prosecutions:
“Mr. NIELSON. Let me ask the question I asked the previous panel. Do any of the current alternatives by the FCC — that is the access codes, the credit cards, or the scrambling — do any of those provide a foolproof way of limiting dial-a-porn access to adults only? Either of you.
“Mr. WARD. I think that — it’s not foolproof, but I think the access code requirement and the screening option, both provide the means of dramatically reducing the number of calls from minors in the United States, almost eliminating them. So I think that it would be a very effective way to do it.
“Mr. NIELSON. But not foolproof?
“Mr. WARD. Not absolutely foolproof.”
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_stateclaim
|
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 dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
Jack C. VAUGHAN, v. CITY BANK & TRUST COMPANY, NATCHEZ, MISS.
No. 15163.
United States Court of Appeals. Fifth Circuit.
Jan. 28, 1955.
Rehearing Denied March 17, 1955.
Jack C. Vaughan, in pro. per.
R. Brent Forman, Natchez, Miss., for appellee.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAW-KINS, District Judge.
HUTCHESON, Chief Judge.
Acting for and representing himself, plaintiff brought this suit, to recover of defendant $10,416.95 which plaintiff paid it and $250,000.00’ as damages for defendant’s having wrongfully caused to be published a notice of trustee’s sale of property on. which plaintiff had given a deed of trust, and to cancel and set aside said deed of trust.
The proceedings set out below followed, and plaintiff on June 9, 1954, giving notice of appeal “from the following orders of this court in this cause, to-wit, order of Nov. 20, 1953 * * * and (2) final order of May 17, 1954, dismissing the action” is here seeking their reversal.
The appellee moves to dismiss the appeal from both orders. As to the order of Nov. 20, 1953, which overruled the motion to reconsider the order of Oct. 19, 1953, overruling plaintiff’s motion for summary judgment, he insists that it was not a final order and therefore was unappealable, as was the order of Oct. 19th itself. He further insists that if the order of November 20th was appealable, the appeal was not filed in time.
In support of his motion to dismiss the appeal as to the order of May 17, 1954, pointing out that this order was entered at the request of plaintiff, and citing many cases in support, he insists that it is a voluntary dismissal and, being therefore a consent decree, it is not an order from which plaintiff can appeal.
As to the order of November 20, 1953, we agree with appellee that, for the reasons put forward by it, the order was not an appealable one, and the attempted appeal from it must be dismissed.
As to the dismissal order of May 17, 1954, however, while we are of the clear opinion that it was entered properly and advisedly and no error requiring its reversal has been made to appear, we are also of the opinion that the order was a final and appealable one, and the motion to dismiss the appeal from it must be, and it is, denied.
It is true that upon its face the dismissal of the action appears to have been voluntary rather than involuntary, an order invited and consented to rather than one entered in invitum. The record taken as a whole, however, shows plainly that appellant took the course he did not for the purpose and with the intent of voluntarily discontinuing his action, but to obtain an involuntary dismissal within the rule of Ruff v. Gay, 5 Cir., 67 F.2d 684 and Weeks v. Fidelity & Cas. Co., 5 Cir., 218 F.2d 503, and that the order was in reality, and should be regarded as, an involuntary dismissal for want of prosecution and therefore a final judgment from which plaintiff could appeal. Cf. Milton v. U. S., 5 Cir., 120 F.2d 794, 795; Cybur Lbr. Co. v. Eckhard, 5 Cir., 247 F. 284; Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460.
When it comes, however, to appellant’s position, that he was entitled to a summary judgment on his pleadings, and could and would stand on them and refuse further to prosecute his suit and the court erred in dismissing it, the matter stands quite differently.
It is perfectly clear, we think, that there is no merit in plaintiff’s position and that the court did not err in dismissing his suit for want of prosecution. Putting to one side, therefore, appellee’s claim that the court should have dismissed the action for the failure of plaintiff’s complaint to state a claim, though it is difficult to find in it any legal basis for his demands, we think it quite clear beyond any question that there was no basis whatever for his claim that he was entitled on his pleadings to a summary judgment, and the district judge erred in not rendering such a judgment in his favor. On this record the court had no alternative to dismissing his suit.
The judgment was right. It is affirmed.
. The original bill of complaint was filed in the district court, on March 20, 1953, and on April 17, plaintiff filed a . motion for summary judgment.
Thereafter on Sept. 17, 1953, the district judge, by letter, advised the parties that it was his intention to overrule the motion for summary judgment, and on Sept. 25, 1953, plaintiff filed a motion to reconsider the motion for summary judgment.
On October 5, 1953, the answer of defendant was filed, and on October 13, 1953, a motion was filed by plaintiff to strike the defendant’s answer.
On Oct. 19, 1953, the order overruling the motion for summary judgment was filed.
On November 20, 1953, an Order was issued overruling the plaintiff’s motion to reconsider the summary judgment, and also overruling the plaintiff’s motion to strike the defendant’s answer.
On May 12, 1954, an instrument was filed by plaintiff stating that he did not intend to take any further steps in the prosecution of his cause and asking that the cause be dismissed.
On May 17, 1954, an order of dismissal was entered by the court in response to plaintiff’s request.
. Capella v. Zurich General Acc. Lib. Ins. Co., 5 Cir., 194 F.2d 558; Smails v. O'Omalley, 8 Cir., 127 F.2d 410; Lake City, Nettleton & Bay Road v. Luehrmann, 8 Cir., 113 F.2d 458; Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460; U. S. v. Babbitt, 104 U.S. 767, 26 L.Ed. 921.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
BRANCH et al. v. SMITH et al.
No. 01-1437.
Argued December 10, 2002
Decided March 31, 2003
Scalia, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, the opinion of the Court with respect to Part III-A, in which REHNQUIST, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III-B and IV, in which Rehnquist, C. J., and Kennedy and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion, in Part II of which Stevens, Souter, and Breyer, JJ., joined, post, p. 282. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter and Breyer, JJ., joined, post, ■ p. 285. O’Connor, J, filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined, post, p. 292.
Robert B. McDuff argued the cause for appellants in No. 01-1437 and cross-appellees in No. 01-1596. With him on the briefs was Pamela S. Karlan.
James A. Feldman argued the cause for the United States as amicus curiae supporting cross-appellees.. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, Mark L. Gross, and Kevin Russell.
Michael B. Wallace argued the cause for appellees in No. 01-1437 and cross-appellants in No. 01-1596. With him on the briefs were Arthur F. Jernigan, Jr., and Grant M. Fox.
Together with No. 01-1596, Smith et al. v. Branch et al., also on appeal from the same court.
Briefs of amici curiae urging reversal in No. 01-1437 were filed for the National Association for the Advancement of Colored People et al. by J Gerald Hebert and Robert Rubin; and for the Nationalist Movement by Richard Barrett.
John P. Krill, Jr., filed a brief for Robert C. Jubelirer et al. as amici curiae urging affirmance in No. 01-1437.
Justice Scalia
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, and an opinion with respect to Parts III-B and IV, in which The Chief Justice, Justice Kennedy, and Justice Ginsburg join.
In these cases, we decide whether the District Court properly enjoined a Mississippi state court’s proposed congressional redistricting plan and whether it properly fashioned its own congressional reapportionment plan rather than order at-large elections.
I
The 2000 census caused Mississippi to lose one congressional seat, reducing its representation in the House of Representatives from five Members to four. The state legislature, however, failed to pass a new redistricting plan after the decennial census results were published in 2001. In anticipation of the March 1, 2002, state-law deadline for the qualification of candidates, see Miss. Code Ann. § 23-15-299 (Lexis 2001), appellant and cross-appellee Beatrice Branch and others (state plaintiffs) filed suit in a Mississippi State Chancery Court in October 2001, asking the state court to issue a redistricting plan for the 2002 congressional elections. In November 2001, appellee and cross-appellant John Smith and others (federal plaintiffs) filed a similar action under Rev. Stat. § 1979, 42 U. S. C. § 1983, in the United States District Court for the Southern District of Mississippi, claiming that the current districting plan, Miss. Code Aim. §23-15-1037 (Lexis 2001), dividing the State into five, rather than four, congressional districts, was unconstitutional and unenforceable. The federal plaintiffs asked the District Court to enjoin the current redistricting plan, and subsequently asked it to enjoin any plan developed by a state court (which they asserted would violate Article I, § 4, of the Constitution, and, in any event, could not be enforced until the state court’s assertion of redistricting authority was precleared under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c), and asked that it order at-large elections pursuant to Miss. Code Ann. §23-15-1039 (2001) and 46 Stat. 26, 2 U. S. C. § 2a(c)(5), or, alternatively, devise its own redistricting plan.
A three-judge District Court was convened pursuant to 28 U. S. C. § 2284. Initially the District Court did not interfere with the State Chancery Court’s efforts to develop a redistricting plan. In an order filed on December 5, 2001, Smith v. Clark, 189 F. Supp. 2d 502 (SD Miss.), the District Court permitted the state plaintiffs to intervene and deferred ruling on the federal plaintiffs’ motion for a preliminary injunction. In staying its hand, the District Court recognized that “ ‘the Constitution leaves with the States primary responsibility for apportionment of their federal congressional... districts,’ ” id., at 503 (quoting Growe v. Emison, 507 U. S. 25, 34 (1993)), but concluded that “if it is not clear to this court by January 7, 2002 that the State authorities can have a redistricting plan in place by March 1, we will assert our jurisdiction... and if necessary, we will draft and implement a plan for reapportioning the state congressional districts,” 189 F. Supp. 2d, at 503; see also 189 F. Supp. 2d 503, 505-506 (SD Miss. 2002).
On the eve of the State Chancery Court trial, the Mississippi Supreme Court denied petitions for writs of prohibition and mandamus filed by a state defendant and others challenging the Chancery Court’s jurisdiction to engage in congressional redistricting. It held that the Chancery Court had jurisdiction to issue a redistricting plan. In re Mauldin, Civ. No. 2001-M-01891 (Dec. 13, 2001), App. to Juris. Statement 110a. Following trial, on December 21, 2001, the State Chancery Court adopted a redistricting plan submitted by the state plaintiffs. On December 26, the state attorney general submitted that plan, along with the Mississippi Supreme Court’s Mauldin decision (which arguably changed the process for drawing congressional districts by authorizing the Chancery Court to create a redistricting plan), to the Department of Justice (DOJ) for preclearance. On February 14, 2002, DOJ sent a letter to the state attorney general requesting additional information about the Mauldin decision, because “the information sent to date regarding this change in voting procedure is insufficient....” App. to Juris. Statement 193a. The letter advised that the “sixty-day review period will begin when we receive the information specified.” Id., at 196a. The state attorney general provided additional information on February 19 and 20, 2002.
Meanwhile, in January 2002, the District Court, expressing “serious doubts whether the Mississippi Supreme Court’s Order and the plan adopted by the Chancery Court pursuant to that order will be precleared prior to the March 1 candidate qualification deadline,” 189 F. Supp. 2d, at-508, had begun to develop its own redistricting plan, id., at 511. On February 4, 2002, it promulgated a redistricting plan to be used absent the timely preclearance of the Chancery Court plan. 189 F. Supp. 2d 512 (SD Miss.). On February 19, it ordered that, if the Chancery Court redistricting plan was not “precleared before the close of business on Monday, February 25, 2002,” then the District Court’s plan would fix the Mississippi congressional districts for the 2002 elections. 189 F. Supp. 2d 529, 548. February 25th came and went with no action by DOJ. On February 26, the District Court enjoined the State from using the Chancery Court plan and ordered use of the District Court’s own plan in the 2002 elections and all succeeding elections until the State produced a constitutional redistricting plan that was precleared. 189 F. Supp. 2d 548, 559. The court said that the basis for its injunction and order was “reflected in our opinion of February 19, that is, the failure of the timely preelearance under § 5 of the Voting Rights Act of the Hinds County Chancery Court’s plan.” Id., at 549. However, “in the event that on appeal it is determined that we erred in our February 19 ruling,” the court put forth as its “alternative holding” that Article I, §4, of the United States Constitution prohibited the State Chancery Court from issuing a redistricting plan without express authorization from the state legislature. Ibid.
The State did not file a notice of appeal. On April 1,2002, DOJ informed the State in a letter that “it would be inappropriate for the Attorney General to make a determination concerning [the State’s preclearance] submission now” because the District Court’s injunction rendered the state-court plan incapable of administration. App. 29.
The state plaintiffs — intervenors in the District Court— filed a timely notice of appeal from the District Court and a jurisdictional statement. The federal plaintiffs filed a jurisdictional statement on conditional cross-appeal. We noted probable jurisdiction in both appeals and consolidated them. 536 U. S. 903 (2002).
II
At the outset we should observe two critical distinctions between these cases and the one that was before us in Growe v. Emison, 507 U. S. 25 (1993). In Growe, the Federal District Court had refused to abstain or defer to state-court redistricting proceedings. Id., at 30-31. In reversing, we reminded the federal courts of “ ‘what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.’” Id., at 34 (quoting Chapman v. Meier, 420 U. S. 1, 27 (1975)). We held that “[a]bsent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it.” 507 U. S., at 34 (emphasis added). In the present cases, unlike in Growe, there is no suggestion that the District Court failed to allow the state court adequate opportunity to develop a redistricting plan. The second distinction is that the state-court plan here, unlike that in Growe, was subject to §5 of the Voting Rights Act, 42 U. S. C. § 1973c. The District Court rested its injunction of the state-court plan on the ground that necessary preclearance had not been obtained. It is that challenged premise that we examine first.
Section 5 of the Voting Rights Act provides that whenever a covered jurisdiction, such as Mississippi, see 30 Fed. Reg. 9897 (1965), “shall enact or seek to administer” a change in “any voting qualification or prerequisite to voting, or standard, practice, or procedure,” the State must obtain preclearance from the District Court for the District of Columbia or the Attorney General before the change may be enforced. 42 U. S. C. § 1973c. The Act requires preclearance of all voting changes, ibid.; see Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 38-39 (1978), and there is no dispute that this includes voting changes mandated by order of a state court, see, e. g., In re McMillin, 642 So. 2d 1336, 1339 (Miss. 1994). Rather, the controversy pertains to the proviso in § 1973c to the effect that, where the preclearance submission is made to the Attorney General, the voting change may be enforced if “the Attorney General has not interposed an objection within sixty days after such submission....”
Appellants in No. 01-1437 (originally the state plaintiffs) assert that the District Court erred in believing that the Chancery Court’s plan lacked preclearance. It was automatically rendered enforceable, they contend, by DOJ’s failure to object within the 60-day period running from the state attorney general’s initial submission on December 26,2001— or, in the alternative, it was subsequently rendered enforceable by DOJ’s failure to object within the 60-day period running from the state attorney general’s submission of additional information on February 20, 2002. We consider each of these contentions in turn.
A
Under § 5, a jurisdiction seeking administrative preclearance must prove that the change.is nondiscriminatory in purpose and effect. Reno v. Bossier Parish School Bd., 528 U. S. 320, 328 (2000). It bears the burden of providing the Attorney General information sufficient to make that proof, Georgia v. United States, 411 U. S. 526, 537-539 (1973), and failure to do so will cause the Attorney General to object, see ibid.; 28 CFR § 51.52(c) (2002). In DOJ’s view, however, incomplete state submissions do not start the 60-day clock for review. See §§51.27, 51.37. The regulations implementing §5 authorize a DOJ request for additional information from a jurisdiction that has initially “omitted information considered necessary for the evaluation of the submission.” § 51.37(a). If the jurisdiction responds by supplying the additional information (or stating that it is unavailable), the 60-day clock begins to run from the date the response is received. § 51.37(c). We have upheld these regulations as being “wholly reasonable and consistent with the Act.” Georgia v. United States, supra, at 541; accord, Morris v. Gressette, 432 U. S. 491, 504, n. 19 (1977).
DOJ’s February 14 request for additional information was within the Attorney General’s discretion under 28 CFR §51.37, thereby postponing the 60-day time period for objections until the requested information was received. The request was neither frivolous nor unwarranted. See Georgia v. United States, supra, at 541, n. 13. DOJ believed that the Mississippi Supreme Court’s Mauldin order, holding that the Chancery Court had jurisdiction to engage in redistricting, was a change in voting procedures, and it sought additional information demonstrating that this change would not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, as required under §5. The fact that the District Court identified the same issue as posing a hurdle to preclearance further suggests that DOJ’s request was not frivolous. 189 F. Supp. 2d, at 508-509. The request for more information was not frivolous or unwarranted at the time it was made, regardless of whether it ultimately develops that Mauldin and the Chancery Court’s assertion of jurisdiction to redistrict are not voting changes that required preclearance.
B
Appellants contend that even if the State Chancery Court’s plan was not precleared by operation of law on February 25, 2002, it was precleared on April 22, 60 days after the state attorney general submitted the additional information requested. We think not.
Section 5 provides that “[w]henever a [covered jurisdiction] shall enact or seek to administer” a voting change, such a change may be enforced if it is submitted to the Attorney General and there is no objection by the Attorney General within 60 days. 42 U. S. C. § 1973c (emphasis added). Clearly the State Chancery Court’s redistricting plan was not “enacted” by the State of Mississippi. An “enactment” is the product of legislation, not adjudication. See Webster’s New International Dictionary 841 (2d ed. 1949) (defining “enact” as “[t]o make into an act or law; esp., to perform the legislative act with reference to (a bill) which gives it the validity of law”); Black’s Law Dictionary 910 (7th ed. 1999) (defining “legislate” as “[t]o make or enact laws”). The web of state and federal litigation before us is the consequence of the Mississippi Legislature’s failure to enact a plan. The Chancery Court’s redistricting plan, then, could be eligible for preclearance only if the State was “seeking] to administer” it.
There is no doubt that the State was “seeking] to administer” the changes for which preclearance was sought when the Mississippi attorney general made his initial submission to DOJ on December 26, 2001, and when he provided additional information regarding the state-court plan on February 20, 2002. On February 26, 2002, however, the District Court “enjoined [the State] from implementing the congressional redistricting plan adopted by the [state court],” 189 F. Supp. 2d, at 559, and the State never appealed that injunction. Uncontrovertibly, the State was no longer “seek[ing] to administer” the state-court plan, and thus the 60-day time period for DOJ review was no longer running. The passing of 60 days from the date of the State’s February 20, 2002, submission of the additional requested information had no legal significance, and the state-court plan was not rendered enforceable by operation of law.
Appellants’ argument — that their appeal, as intervenors, is sufficient to demonstrate that the State still “seek[s] to administer” the state-court plan — is invalid on its face. The actions of a private party are not the actions of a State and cannot satisfy the prerequisite to § 5 preclearance.
C
Since we affirm the injunction on the basis of the District Court’s principal stated ground that the state-court plan had not been precleared and had no prospect of being precleared in time for the 2002 election, we have no occasion to address the District Court’s alternative holding that the State Chancery Court’s redistricting plan was unconstitutional — a holding that the District Court specified was set forth to cover the eventuality of the principal stated ground’s being rejected on appeal — and therefore we vacate it as a basis for the injunction. The District Court’s alternative holding is not to be regarded as supporting the injunction we have affirmed on the principal ground, or as binding upon state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court.
Ill
Having determined that the District Court properly enjoined enforcement of the state-court redistricting plan, we turn to the propriety of the redistricting plan that the District Court itself adopted. Cross-appellees in No. 01-1596 (originally the state plaintiffs) and the United States, as amicus curiae, argue that the District Court was required to draw (as it did) single-member congressional districts; cross-appellants in No. 01-1596 (originally the federal plaintiffs) contend that it was required to order at-large elections for the congressional seats. We must decide whether, as cross-appellees contend, the District Court was governed by the provisions of 2 U. S. C. § 2c; or, as cross-appellants contend, by the provisions of 2 U. S. C. § 2a(c)(5).
A
Article I, §4, cl. 1, of the Constitution provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...It reserves to Congress, however, the power “at any time by Law [to] make or alter such Regulations, except as to the Places of chusing Senators.” Ibid. Pursuant to this authority, Congress in 1929 enacted the current statutory scheme governing apportionment of the House of Representatives. 2 U. S. C. §§2a(a), (b). In 1941, Congress added to those provisions a subsection addressing what is to be done pending redistricting:
“Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then prescribed by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.” §2a(c).
In 1967,26 years after § 2a(c) was enacted, Congress adopted §2c, which provides, as relevant here:
“In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative...
The tension between these two provisions is apparent: Section 2c requires States entitled to more than one Representative to elect their Representatives from single-member districts, rather than from multimember districts or the State at large. Section 2a(c), however, requires multimem-ber districts or at-large elections in certain situations; and with particular relevance to the present cases, in which Mississippi, by reason of the 2000 census, lost a congressional seat, §2a(c)(5) requires at-large elections. Cross-appellants' would reconcile the two provisions by interpreting the introductory phrase of § 2a(c) (“Until a State is redistricted in the manner provided by the law thereof after any apportionment”) and the phrase “established by law” in §2c to refer exclusively to legislative redistricting — so that §2c tells the legislatures what to do (single-member districting) and § 2a(c) provides what will happen absent legislative action— in the present cases, the mandating of at-large elections.
The problem with this reconciliation of the provisions is that the limited role it assigns to § 2c (governing legislative apportionment but not judicial apportionment) is contradicted both by the historical context of § 2c’s enactment and by the consistent understanding of all courts in the almost 40 years since that enactment. When Congress adopted § 2c in 1967, the immediate issue was precisely the involvement of the courts in fashioning electoral plans. The Voting Rights Act of 1965 had recently been enacted, assigning to the federal courts jurisdiction to involve themselves in elections. See 79 Stat. 439 (as amended and codified at 42 U. S. C. § 1973 et seq.). Even more significant, our decisions in Baker v. Carr, 369 U. S. 186 (1962), Wesberry v. Sanders, 376 U. S. 1 (1964), and Reynolds v. Sims, 377 U. S. 533 (1964), had ushered in a new era in which federal courts were overseeing efforts by badly malapportioned States to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards. In a world in which the role of federal courts in redistricting disputes had been transformed from spectating, see Colegrove v. Green, 328 U. S. 549 (1946) (opinion of Frankfurter, J.), to directing, the risk arose that judges forced to fashion remedies would simply order at-large elections.
At the time Congress enacted §2c, at least six District Courts, two of them specifically invoking 2 U. S. C. §2a(c)(5), had suggested that if the state legislature was unable to redistrict to correct malapportioned congressional districts, they would order the State’s entire congressional delegation to be elected at large. On March 26, 1964, a three-judge District Court ordered that, pending enactment of a constitutional redistricting plan by the Michigan Legislature, all Michigan Representatives would be elected at large. Calkins v. Hare, 228 F. Supp. 824, 830 (ED Mich. 1964). On October 19, 1964, a three-judge District Court entered a similar order for the State of Texas. See Bush v. Martin, 251 F. Supp. 484, 489, and n. 11, 490, and n. 17 (SD Tex. 1966). On February 3,1965, a three-judge District Court in Arkansas, whose House delegation had decreased from six to four Members after the 1960 census, stated that under §2a(c)(5), “if the Legislature... had taken no action [after the 1960 apportionment] the congressmen would have been required to run at large,” and that the same reasoning would compel the court to require at-large elections if the legislature adopted malapportioned congressional districts. Park v. Faubus, 238 F. Supp. 62, 66 (ED Ark. 1965). On August 5, 1966, a three-judge District Court in Missouri, whose House delegation had decreased from 11 to 10 Members after the 1960 census, informed the State that if it was unable to redistrict in accordance with the Constitution, then pursuant to the “command of Section 2(a)(c) [sic],” “the congressional elections for Missouri will be ordered conducted at large until new and constitutional districts are created.” Preisler v. Secretary of State of Missouri, 257 F. Supp. 953, 981, 982 (WD Mo. 1966), aff’d, 385 U. S. 450 (1967) (per curiam,). In Meeks v. Anderson, 229 F. Supp. 271, 273-274 (Kan. 1964), and Baker v. Clement, 247 F. Supp. 886, 897-898 (MD Tenn. 1965), three-judge District Courts stayed their hands but held forth the possibility of requiring at-large elections. With all this threat of judicially imposed at-large elections, and (as far as we are aware) no threat of a legislatively imposed change to at-large elections, it is most unlikely that § 2c was directed solely at legislative reapportionment.
Nor have the courts ever thought so. To the contrary, every court that has addressed the issue has held that §2c requires courts, when they are remedying a failure to redistrict constitutionally, to draw single-member districts whenever possible. The first court to examine §2c, just two weeks after the statute was enacted, was the three-judge District Court in Missouri that had previously threatened to order at-large elections in accordance with § 2a(c)(5). In its decision on December 29, 1967, that court observed that the enactment of § 2c had “relieved [it] of the prior existing Congressional command to order that the 1968 and succeeding congressional elections in Missouri be held at large,” Preisler v. Secretary of State of Missouri, 279 F. Supp. 962, 969 (WD Mo. 1967), aff’d, 394 U. S. 626 (1969), and accordingly reversed its prior position and stated that it would fashion a districting plan if the State failed to fulfill its duty. Four years later, the Supreme Court of Virginia denied a writ of mandamus directing at-large elections to replace an allegedly unconstitutional Redistricting Act, on the ground that by reason of §2c “we cannot legally issue the writ.” Simpson v. Mahan, 212 Va. 416, 417, 186 S. E. 2d 47, 48 (1971). The next year the Supreme Court of California reached the same conclusion that §2c required it to establish single-member districts, see Legislature v. Reinecke, 6 Cal. 3d 595, 602-603, 492 P. 2d 385, 390 (1972), a conclusion that it reaffirmed in 1982, see Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d 638, 664, 639 P. 2d 939, 955 (1982). In Shayer v. Kirkpatrick, 541 F. Supp. 922, 926 (WD Mo.), aff’d sub nom. Schatzle v. Kirkpatrick, 456 U. S. 966 (1982), the District Court concluded that “nothing in section 2c suggests any limitation on its applicability,” and declined to order at-large elections pursuant to §2a(c)(5) because §2c “appears to prohibit at-large elections.” And in Carstens v. Lamm, 543 F. Supp. 68 (Colo. 1982), the District Court reached a substantially identical result, although contemplating that §2a(c) provided a “stop-gap measure” in the “event that no constitutional redistricting plan exists on the eve of a congressional election, and there is not enough time for either the Legislature or the courts to develop an acceptable plan,” id., at 77, and n. 23.
It bears noting that this Court affirmed two of the District Court decisions described above, see Preisler, supra, and Shayer, supra, one without discussing §2c, and one summarily. And in 1971 we observed in dictum that “[i]n 1967, Congress reinstated the single-member district requirement” that had existed before the enactment of §2a(c). Whitcomb v. Chavis, 403 U. S. 124, 159, n. 39 (1971).
Of course the implausibility (given the circumstances of its enactment) that §2e was meant to apply only to legislative reapportionment, and the unbroken unanimity of state and federal courts in opposition to that interpretation, would be of no consequence if the text of §2c (and of §2a(c)) unmistakably demanded that interpretation. But it does not. Indeed, it is more readily susceptible of the opposite interpretation.
The clause “there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled” could, to be sure, be so interpreted that the phrase “by law” refers only to legislative action. Its more common meaning, however, encompasses judicial decisions as well. See, e. g., Hope v. Pelzer, 536 U. S. 730, 741 (2002) (referring to judicial decisions as “established law” in qualified immunity context); Swidler & Berlin v. United States, 524 U. S. 399, 407 (1998) (referring to judicial decisions as “established law” in the attorney-client privilege context); United States v. Frady, 456 U. S. 152, 166 (1982) (referring to the judicially established standard of review for a 28 U. S. C. §2255 motion as “long-established law”); see also § 2254(d)(1) (“clearly established Federal law, as determined by the Supreme Court of the United States”); Marbury v. Madison, 1 Cranch 137, 177 (1803) (it is “the province and duty of the judicial department to say what the law is”).
We think, therefore, that while §2c assuredly envisions legislative action, it also embraces action by state and federal courts when the prescribed legislative action has not been forthcoming. We might note that giving “by law” its less common meaning would cause the immediately following clause of §2c (“and Representatives shall be elected only from districts so established” (emphasis added)) to exclude all courts from redistricting, including even state courts acting pursuant to state legislative authorization in the event of legislative default. It is hard to see what plausible congressional purpose this would serve. When, as here, the situation (a decrease in the number of Representatives, all of whom were formerly elected from single-member districts) enables courts to prescribe at-large elections under paragraph (5) of §2a(c) (assuming that section subsists, see infra, at 273), it can be said that there is a constitutional fallback. But what would occur if the situation called for application of paragraphs (1) to (4) of §2a(c), none of which is constitutionally enforceable when (as is usual) the decennial census has shown a proscribed degree of disparity in the voting population of the established districts? The absolute prohibition of §2c (“Representatives shall be elected only from [single-member] districts [legislatively] established”) would be subject to no exception, and courts would (despite Baker v. Carr) be congressionally forbidden to act when the state legislature has not redistricted. Only when it is utterly unavoidable should we interpret a statute to require an unconstitutional result — and that is far from the situation here.
In sum, §2c is as readily enforced by courts as it is by state legislatures, and is just as binding on courts — federal or state — as it is on legislatures.
B
Having determined that in enacting 2 U. S. C. § 2c, Congress mandated that States are to provide for the election of their Representatives from single-member districts, and that this mandate applies equally to courts remedying a state legislature’s failure to redistrict constitutionally, we confront the remaining question: what to make of §2a(c)? As observed earlier, the texts of § 2c and § 2a(c)(5) are in tension. Representatives cannot be “elected only from districts,” § 2c, while being elected “at large,” §2a(c). Some of the courts confronted with this conflict have concluded that §2c repeals § 2a(c) by implication. See Shayer v. Kirkpatrick, 541 F. Supp., at 927; Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d, at 663-664, 639 P. 2d, at 954. There is something to be said for that position — especially since paragraphs (1) through (4) of § 2a(c) have become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional. (The unlikely exception is the situation in which the decennial census makes no districting change constitutionally necessary.) Eighty percent of the section being a dead letter, why would Congress adhere to the flotsam of paragraph (5)?
We have repeatedly stated, however, that absent “a clearly expressed congressional intention,” Morton v. Mancari, 417 U. S. 535, 551 (1974), “repeals by implication are not favored,” Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U. S. 186, 193 (1968). An implied repeal will only be found where provisions in two statutes are in “irreconcilable conflict,” or where the latter Act covers the whole subject of the earlier one and “is clearly intended as a substitute.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936). So while there is a strong argument that §2c was a substitute for §2a(c), we think the better answer is that §2a(c) — where what it prescribes is constitutional (as it is with regard to paragraph (5)) — continues to apply
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
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.
J. L. KAMSLER, Plaintiff-Appellant, v. M. F. I. CORPORATION, Caine Steel Co., G & H Steel Plate Co., Beverly Steel Corp., Clearing Steel, Inc., and Sgt. Ed McGlynn of the Chicago Police Department, Defendants-Appellees.
No. 15395.
United States Court of Appeals Seventh Circuit.
March 29, 1966.
J. L. Kamsler, Chicago, 111., for appellant.
Barry B. Nekritz, Joel S. Siegel, Donald J. Veverka, Elsdon C. Smith, Chicago, 111., Friedman, Koven, Salzman, Koenigs-berg, Specks & Homer, Chicago, 111., of counsel, for appellees.
Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.
HASTINGS, Chief Judge.
Plaintiff-appellant, J. L. Kamsler, has appealed from an order of the district court dismissing his complaint for damages, under civil rights statutes, for want of jurisdiction.
In general, Kamsler asserts that the district court committed the following errors: dismissed the complaint and all its counts for want of jurisdiction; considered previous litigation which did not directly relate to the instant case; and failed to accept alleged facts as true.
In the first count of his complaint, Kamsler contended that defendants, M.F.I. Corporation, Caine Steel Co., G & H Steel Plate Co., Beverly Steel Corp., Clearing Steel, Inc. and Sgt. Ed McGlynn, of the Chicago Police Department, conspired to violate his constitutional rights by conspiring to extort money from him. Count two alleged the carrying out of the alleged conspiracy. Count three alleged malicious prosecution.
In the counts, Kamsler alleged injury to his reputation and pain in mind and body stemming from the alleged activities of defendants. On each count, he sought 5 million dollars in damages and 5 million dollars in punitive damages.
The record in the instant case is scant. From Kamsler’s complaint, however, it is possible to glean the following allegations of fact.
Kamsler, together with an unnamed individual, purchased steel from a number of companies, among which were some of the defendants. Promissory notes were given for these purchases, but the notes were not paid.
Sometime between July, 1962 and February, 1963, the defendants allegedly conspired with Sgt. Ed McGlynn, of the Chicago Police Department, to extort money from Kamsler by threatening to send him to jail for failure to pay the promissory notes.
It was further alleged that defendants signed criminal complaints against Kam-sler. The alleged conspirators urged individuals unacquainted with Kamsler, but to whom he owed money, to sign complaints. Kamsler was required to make bond.
There was an alleged conspiracy between defendants, certain assistant state’s attorneys and other unnamed public officials to ensure that Kamsler was harassed and prosecuted.
Defendants gave evidence before the grand jury, and indictments were returned against Kamsler. Kamsler was held under special bond and ordered to stand trial in the Criminal Court of Cook County, Illinois.
Kamsler was prosecuted. The record before us does not reveal the re-suit of the prosecution. However, in the interests of justice, we may take notice of the proceedings of this court in related litigation. Cf. Meredith v. Van Oosterhout, 286 F.2d 216, 217 (1960), cert. den., 365 U.S. 835, 81 S.Ct. 749, 5 L.Ed.2d 745 (1961); A. G. Reeves Steel Const. Co. v. Weiss, 119 F.2d 472, 474 (1941), cert. den., 314 U.S. 677, 62 S.Ct. 181, 86 L.Ed. 541 (1941). We take notice therefore of the opinion of this court in Kamsler v. Ward, 353 F.2d 207 (1965) in which it is revealed that six indictments were returned against Kamsler and that he stood trial and was convicted on two of them. The remaining four indictments were nonprossed.
The relevant portions of the civil rights statutes, upon which Kamsler relies, are;
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
“(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;”
“ * * *
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” 28 U.S.C.A. § 1343(1), (3).
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C.A. § 1983.
Under these statutes, a district court does not have jurisdiction unless a person is deprived of Constitutional or statutory rights, privileges, or immunities.
Kamsler has alleged violations of his rights under the fifth, sixth, eighth and fourteenth amendments to the United States Constitution. He has not, however, related such violations to his allegations of fact; that is, there is no showing how or in what manner his federal rights were violated.
Due process is not concerned with the reason for an indictment or a prosecution, but with fairness. Kamsler does not allege that the grand jury proceedings themselves were illegal or unfair. Nor has it been alleged that there was a denial of due process in the subsequent trials.
A careful examination of Kamsler’s complaint does not reveal a deprivation, under color of state authority, of his Constitutional rights. Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Kamsler v. Zaslawsky, 7 Cir., 355 F.2d 526 (1966). No claim has been presented upon which relief can be granted. Federal Rules of Civil Procedure, 12(h), 28 U.S.C.A.
Finally, in his reply brief, Kamsler admits that he was convicted on trial of two counts of the six count indictment. He states he was sentenced to serve a term of one to five years in the “Zaslaw-sky case” and a term of two to six years in the “case of the M.F.I. Corp.” It was disclosed in oral argument that one of the convictions had been affirmed on appeal, while an appeal in the other is still pending. This sad conclusion would appear to effectively illustrate the inadequacy of Kamsler’s complaint to state a claim under the relevant statutes.
We hold that the district court did not err in dismissing plaintiff’s complaint. The judgment appealed from is affirmed.
Affirmed.
. The relevant part of 42 U.S.C.A. § 1985 reads as follows:
“(2) If two or more persons in any State or Territory eonspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or prop-
erty on. account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons eonspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.”
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_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Appellant, v. Joseph F. X. McNALLY a/k/a “Pope” McNally, Appellee.
No. 72-1297.
United States Court of Appeals, Third Circuit.
Argued Nov. 2, 1972.
Decided Jan. 15, 1973.
William D. Hyatt, Tax Division, Dept, of Justice, Washington, D. C., for appellant.
Meyer A. Bushman, Philadelphia, Pa., for appellee.
Before FORMAN, ADAMS and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
This appeal, in which the government challenges a suppression of evidence ordered by the district court, 338 F.Supp. 341, forces us to peer once again into the murky area surrounding the precepts governing averments necessary for a finding of probable cause, the basic component that permits a search warrant to issue.
The Fourth Amendment commands:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A significant number of United States Supreme Court cases require that, if a statement made by an unidentified informer is to be an element in the determination of probable cause, the importance of the statement and the weight to be accorded it in that determination must be analyzed carefully. Thus the task facing the Court in this case is to ascertain whether the affidavit, produced to support the issuance of the search warrant, containing, inter alia, a statement by two unidentified informers, provided a sufficient basis for a finding of probable cause to search a property at 3039 Belgrade Street, Philadelphia.
I.
Defendant Joseph P. X. “Pope” Mc-Nally was indicted on seven counts of (a) failing to file income tax returns and (b) filing fraudulent tax returns for the years 1963-1966, on income totaling $833,055.17. The charges were based primarily on evidence gathered at a house located at 3039 Belgrade Street, occupied by McNally’s mother. That evidence, implicating McNally in a wide-ranging wagering operation, was seized in a search conducted pursuant to a warrant. It was this warrant that was successfully attacked in the district court.
The affidavit submitted to the magistrate in support of the warrant indicated an extensive system of numbers gambling and horse race wagering. The betting operation described, situated in the Richmond section of Philadelphia, Pennsylvania, was quite active, employing techniques typical of such an enterprise. This much of the affidavit is not in contention. Rather, the controversy turns on the allegations identifying McNally as the “banker” and establishing a nexus between his activity and 3039 Belgrade. The averments include statements that:
(1) “Confidential information was received from two confidential sources, proven reliable in the past, that a large scale wagering operation was being conducted in the Richmond section of Philadelphia, and the ‘banker’ of this operation was Joseph ‘Pope’ McNally.”
(2) McNally had been arrested fifteen times and convicted six times for numbers violations.
(3) McNally was observed driving in a surreptitious manner on several occasions.
(4) McNally was seen carrying a brown paper bag on two occasions.
(5) Several conversations were overheard by special agents in which reference was made to the leader of this operation, referred to as “Pope.”
(6) McNally appeared several times in various taverns in which special agents had placed bets.
(7) McNally visited the house searched, 3039 Belgrade, the home of his mother, ten times within a two-month period under questionable circumstances.
The district court, holding United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), not controlling, considered itself bound by what it referred to as “the somewhat unrealistic standards” required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
Focusing on the allegations linking McNally to the gambling operations and finding them inadequate to establish probable cause to suspect that McNally was the “banker” of the business, the district court did not go on to consider whether the affidavit provided any indication that 3039 Belgrade was the locus of criminal activity because it did not find that McNally, himself, was involved in criminal activity.
II.
Before commencing an inquiry into the sufficiency of the affidavit, it is important to note the presumptions with which reviewing courts are directed to approach such an examination:
“. . . that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, [85 S.Ct. 223, 13 L.Ed.2d 142] (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, [87 S.Ct. 1056, 18 L.Ed.2d 62] (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, [85 S.Ct. 741, 13 L.Ed.2d 684] (1965); and that their- determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271 [80 S. Ct. 725, 4 L.Ed.2d 697] (I960).”
The first step in the analysis is to determine whether the finding of probable cause is based on the informant’s tip alone, the tip plus evidence corroborating the tip, or the tip and other incriminating evidence. If the tip alone or the tip plus corroboration of the tip are the sole grounds for the finding by the magistrate of probable cause, then Spinelli and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), demand that the tip or the tip plus corroboration meet certain standards. The trial judge found no evidence beyond the tip from which a link between McNally and the numbers operation could be forged. Having reached this conclusion, he then measured the tip against the Aguilar and Spinelli standards and held that no basis for probable cause existed. He concluded, “[N]o nexus had been shown connecting the defendant with the operation in question other than unsubstantiated rumor.”
In Aguilar the Supreme Court was asked to determine whether a warrant could issue based on an affidavit that alleged only:
“Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.”
The Aguilar Court found the warrant had been issued improperly, pointing at two crucial inferences that had been made by the police, not the “neutral, detached” magistrate. First, the affidavit did not reveal to the magistrate any of the basis from which the informer concluded that the contraband, illegal activity, or evidence thereof, could be found in a certain area. Second, no evidence was offered the magistrate as to how the police knew that the informer was “a credible person.”
In Spinelli, however, the Court defined the use that could be made of evidence beyond the tip contained in the affidavit, including evidence intended to substantiate the informer’s tip. The Court made its re-definition in the context of the following allegations:
(1) The FBI “had been informed by a confidential reliable informant” that Spinelli was operating a wagering operation from two telephones, the numbers of which the informer also supplied.
(2) Spinelli had been observed by the FBI for five days during August, 1965. On four of the days he was seen crossing from Illinois to Missouri at noontime and entering an apartment building in the late afternoon. On one of the afternoons he was followed into the building where he was observed entering a specific apartment.
(3) A check with the telephone company revealed that the telephone numbers supplied by the informant were listed at the apartment Spinelli had been seen to enter.
(4) A statement that “Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.”
In holding these allegations insufficient to support a search warrant, the Supreme Court tested the warrant through the following procedure: It first determined that “[T]he tip [,] has a fundamental place in this warrant application. Without it, probable cause could not be established.” Since the tip was essential to a finding of probable cause, it was then lined up against Aguilar. Finding the tip obviously inadequate to meet the two prongs of the Aguilar test, the Court then turned to the additional allegations. The latter allegations, the Court stated, could be used to corroborate the tip, to bring it •up to a level of reliability satisfying both branches of Aguilar. Thus, the material outside the tip could be used to support a magistrate’s conclusion both that the informer had a reasonable and legitimate basis for his statement that linked defendant to criminal activity and that the police had reason to credit the informer. Pointing to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327 (1959), the Court held that a tip that included a plethora of detail might provide the necessary corroboration.
The Supreme Court also made clear that assertions of unsavory reputation regarding the target of the search, without more, were to be disregarded.
Testing the affidavit in Spinelli against these criteria, the Supreme Court found the information beyond the tip inadequate to bring the tip up to the level of reliability required in Aguilar.
The tip proffered in United States v. Harris, supra, was far more detailed than those in either Aguilar or Spinelli. The tip’s adequacy to satisfy the Aguilar requirement that the basis for the informer’s statement be clear was not the contested issue in Harris. Rather, the case turned on the second branch of the Aguilar test: the justification for the authorities’ reliance on the informer. The opinion of Chief Justice Burger, holding that the second branch of the Aguilar test was met, clearly indicates a diminution of the requirement Spinelli imposed on that branch of the test. Moreover, in its language and tenor, the Harris opinion indicates a loosening of the rigid strictures of Spinelli. Nonetheless, Harris did not overrule Spinelli, and in testing the sufficiency of the affidavit in the present appeal, the general pattern described in Spinelli must therefore be followed.
Returning then to Spinelli, two aspects of that decision need further explication. The Supreme Court, reversing the decision of the Eighth Circuit, rejected the “totality of circumstances” approach that had been employed. As described by the Supreme Court, the “totality” approach has a certain self-reinforcing quality. “[T]he informant’s tip gives a suspicious color to the FBI’s reports detailing Spinelli’s innocent-seeming conduct and that, conversely, the FBI’s surveillance corroborates the informant’s tip, thereby entitling it to more weight.”
By rejecting this mode of analysis, the Court has made clear that unless the tip satisfied the Aguilar standard, innocent-appearing conduct must be presumed innocent and cannot be an element in the determination of probable cause. Thus, the facts that there were two telephones in the apartment visited by Spinelli and that he traveled to and from the specific apartment could not be considered as bases for probable cause. However, the requirement regarding innocent-appearing conduct obviously does not cloak suspicious conduct with an aura of innocence. Also, nothing in Spinelli holds that suspicious conduct cannot play a role in a determination of probable cause.
Further, the Spinelli opinion does not rule out completely the use of a tip that does not meet the Aguilar standards. Rather, it permits the use of a tip not meeting the Aguilar standards, if there are, in the affidavit, other indicia of criminal activity. Thus, a determination of probable cause resting on a tip plus other non-innocent conduct is proper, even if use of the tip, were it the only basis for a finding of probable cause, would be improper.
“We conclude, then, that in the present case the informant’s tip — even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause. This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. Rather, it needed some further support. When we look to the other parts of the application, however, we find nothing alleged which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” (emphasis added.)
III.
Having expounded the standards against which an affidavit in support of a search warrant must be measured, it remains to determine if the allegations in support of the warrant here comport with such standards. First, it is clear that the tip, by itself, does not meet the Aguilar test, since it lacks any foundation from which a magistrate could make the two inferences he is required to make. Second, it is also manifest that if the tip plus corroboration were the sole basis for a finding of probable cause, the affidavit here would also fail the Spinelli test. However, the tip is not the only basis upon which probable cause might be grounded in this case. Thus, the tip and the other independently suspect activity must be examined and, if together they establish probable cause, then the search warrant was properly issued.
At the outset of this examination, it is important to note that McNally was suspected of being the banker of the numbers operation. As banker, he was the director of the activity operating behind the scenes, not a visible worker as a numbers writer might be. Therefore, he was able to maintain a very low silhouette and refrain from most conduct which could be an overt indication of his illegal enterprise.
However, there are allegations of suspicious conduct by McNally, actions which remain suspicious even when viewed from Spinelli’s command that innocent-appearing conduct be presumed innocent. Among these are the furtive driving techniques and frequent meetings with known gamblers. There is also a reference to “Pope” by a person with whom an agent had just placed a bet, a reference that indicates that “Pope” was the head of the operation in which the bet-taker was involved. It is clear that taken alone, each of these allegations would be inadequate to support a finding of probable cause; yet each is indicative of illegal activity by the defendant. For example, evasive driving has been held to be conduct that may be considered in a finding of probable cause. See United States v. Squella-Avendano, 447 F.2d 575, 582 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971).
Beyond these assertions, there is the extensive criminal record of McNally. Although Harris indicates that a defendant’s reputation for illegal activity may be accorded weight, the trial court here held that “prior arrests and convictions cannot be considered tantamount to a ‘law enforcement officer’s knowledge of a suspect’s reputation.’ Therefore, a defendant’s prior criminal record is entitled to little weight.” It must be recalled, however, that McNally had been arrested fifteen times and convicted six times for gambling offenses. To hold that past convictions are less reliable than a “law enforcement officer’s knowledge of a suspect’s reputation” would appear illogical.
It may well be that, taken either together or individually, these averments in the affidavit fall short of establishing adequate grounds for believing that McNally is engaging in illegal activities. Nonetheless, they do not describe innocent-appearing conduct, but rather suspicious conduct. When the information received from the confidential sources is added to the other allegations, and all are considered together, as they may be, the allegations are sufficient to link McNally in a meaningful way to the gambling operation.
The trial judge, apparently believing that he had to consider each element of the affidavit separately, and thus not finding the needed link, did not go on to consider whether the activity in the vicinity of 3039 Belgrade was indicative of criminal conduct. Rather, he “reluctantly” granted defendant’s motion to suppress the evidence seized at that address.
IV.
Having established that the affidavit permits a finding that one could reasonably suspect that McNally was the banker of the operation, the inquiry must then be shifted in order to ascertain whether there was a sufficient basis to find probable cause for the search of 3039 Belgrade. The necessity of examining the personal culpability of Mc-Nally arises from the particular facts of this case. Without a basis for believing that McNally was involved in a gambling operation, it might be contended that probable cause to search would be lacking here. This is not to suggest that every search warrant must be analyzed through this two-step procedure. Indeed, in a significant number of cases probable cause might well be established to suspect that illegal activity, evidence thereof or contraband, was at a given location without implicating any particular person.
Before initiating the rigorous examination of the affidavit necessary to determine whether there was probable cause to search the specific address, it must be noted that in Spinelli, a case in which the challenged warrant, as here, was a search warrant and not an arrest warrant, the inquiry regarding sufficiency, nevertheless, examined the personal culpability of Spinelli, i. e., whether Spinelli was, indeed, a bookmaker, not whether bookmaking was being conducted at the address to be searched and for which the warrant was issued. The affidavit in Spinelli dealt only with Spinelli and his activities around a certain apartment, thus perhaps explaining the Court’s focusing on the person not the place. Finding that McNally’s activities in and around 3039 Belgrade are involved in the determination of probable cause to search the place, and that his actions might not be suspect in and of themselves, the Court, here, has had first to scrutinize the allegations involving McNally. This inquiry has produced an ample quantum of credible allegations to support a belief that McNally is the banker of this operation. From this basis, it remains to trace McNally’s activity as it pertains to 3039 Belgrade.
Before detailing the number of times and the circumstances under which McNally was seen at 3039 Belgrade, the role of that house in the operation must be briefly set out. 3039 Belgrade was described as the “bank” of the operation. As such, it was a depository for records as distinguished from the “offices,” the operational centers of the enterprise. Therefore, there would be a lesser amount of activity at 3039 Belgrade, comings and goings only for the purpose of completing the record-keeping operation.
The affidavit details 10 times in which McNally visited 3039 Belgrade during the period from May 24 through July 26, 1967. On four of these occasions, June 5, June 7, July 7 and July 14, there were no indications of suspicious activity. On May 26, the first time that McNally was seen at 3039 Belgrade, he entered with a brown paper bag and paper. Thus, having accounted for 5 of the 10 visits, the other 5 visits remain, all of which took place in July of 1967 and all of which are suggestive of suspicious activity. For example, on July 12, McNally went from an address believed to be one of the offices of the operation to 3039 Belgrade. He remained there for but 3 minutes and then proceeded to the 2400 Bar, a bar at which bets had been placed by undercover agents. On July 17, one of McNally’s alleged lieutenants, believed to be John “Pickles” Millevoi, was seen entering 3039 Belgrade, being admitted by McNally. Approximately one hour later, McNally, having left the house unobserved, was seen to re-enter the house at 5:20 P.M.
On July 18th, McNally left early in the morning from 3039 Belgrade and proceeded to his residence at Revere Street. As he entered his residence, believed to be one of the offices of the operation, he was carrying a small white paper bag. Paper bags have been described by another court as “a hallmark of the calling.” Later that same day, one of McNally’s lieutenants appeared at 3070 Livingston Street, entered, then proceeded to leave that house and to stop at several of the bars described as places where McNally’s numbers writers operated. He then returned to Livingston Street where he was met by McNally. In the late afternoon, McNally’s car was observed back at 3039 Belgrade Street.
On July 19th, McNally and his lieutenant departed from another office of the enterprise, again carrying the “hallmark” brown paper bag. They proceeded to drive in a surreptitious manner to 3039 Belgrade. Later that same day another lieutenant, one Mary Daly, entered 3070 Livingston Street, another of the offices, carrying with her indicia of the enterprise. Shortly after her arrival, McNally and the man identified as Millevoi departed and drove immediately to the Belgrade Street address, entered the house, then drove from the area, again in a surreptitious manner.
Finally, on July 20th, McNally’s lieutenant, Millevoi, was observed making stops at some of the taverns in which McNally’s numbers writers were stationed. Later in that afternoon, Mc-Nally, himself, was seen leaving with Millevoi from the 2400 Bar, driving to another bar and entering a third bar, Mahoney’s Bar. Upon leaving Maho-ney’s Bar, they proceeded immediately, although surreptitiously, to 3039 Belgrade.
Recapitulating then, there are more than 4 occasions at which McNally stopped at 3039 Belgrade during the day, ■ in fact during numbers-writing hours, in the company of known gamblers. This raises at least the inference that these visits were not visits of a solicitous son to his mother, but rather visits in the course of maintaining records of McNally’s illegal enterprise.
Thus, because the affidavit provides a basis to suspect that McNally was, indeed, the “banker” of this numbers operation, we have looked at the allegations contained in the affidavit concerning his visits to 3039 Belgrade. Having done so, we find that one could reasonably believe that this address was the location of records and paraphernalia relating to the gambling enterprise. Finding that probable cause existed for a warrant to search 3039 Belgrade, we hold that the suppression of evidence ordered by the distinguished district court was in error and, therefore, should be reversed.
Y.
Though we set aside the suppression of the evidence in this case, we do so with full awareness of the history surrounding the Fourth Amendment and the high station accorded that Amendment in the body of our liberties. An appeal in a case such as that presently before the Court confronts us with two objectives: protection of individual rights from unjustifiable governmental intrusion and protection of society as a whole from those who, by flouting its laws, diminish those laws and the security they seek to bring. The Fourth Amendment balances these two aspirations by mandating that “no Warrants shall issue, but upon probable cause.” To construe the “probable cause” requirement in an unduly formal or unrealistic manner upsets the equilibrium achieved in the Fourth Amendment. An affidavit in support of a search warrant is not “to be judged as an entry in an essay contest” but is entitled to a “common-sense evaluation.” To require suppression in this ease would be to deny common sense and shift the fulcrum of the scale in favor of one offender and against society. Such a shift, though in the short run perhaps a defeat of authority, would be no gain for liberty.
An order will be entered reversing and remanding the case to the district court for proceedings in conformity with this opinion.
. See e. g., United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) ; Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
. The decision whether a warrant shall issue must be made, in the first instance, by a neutral and detached magistrate, someone independent of the police and prosecution. See Shadwick v. City of Tampa, 407 U.S. 345, 348 (1972) and cases cited therein. The Federal Magistrates Act of 1968 requires that full-time U.S. Magistrates be legally trained. 28 U.S.C. § 631(b)(1).
. McNally asserts his standing to challenge the search and seizure based on his presence on the premises at the time of the search. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969).
. Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964).
. Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).
. In Draper, an informer advised the authorities that a certain gentleman, whose dress, gait and luggage he described, would be arriving on one of two trains, carrying a quantity of heroin. When a man precisely fitting this description did appear, he was arrested, and a search pursuant to the arrest yielded the heroin. Against a challenge by the defendant, the Court held that there was probable cause for the arrest.
. There was no majority opinion in Harris. Rather, various parts of the Chief Justice’s opinion were joined by different Justices producing a majority for the decision but not an Opinion of the Court.
. See, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 38, 53-64 (1971).
. See United States v. Harris, 403 U.S. 573, 585, 91 S.Ct. 2075, 29 L.Ed.2d 723 (Black, J., concurring) and id. at 585-586, 91 S.Ct. 2075 (Blackmun, J., concurring) .
. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).
. Id. at 418, 89 S.Ct. at 590. But see, United States v. Harris, 403 U.S. 573, 587, n. 1, 91 S.Ct. 2075, 29 L.Ed.2d 723 (Harlan, J., dissenting).
. The tip in this case provided a dearth of detail implicating McNally, stating only the critical fact that he was the banker of the gambling operation. A search for evidence to “corroborate” this tip is a fruitless effort, for the only thing to corroborate is the basic allegation that McNally is a gambler, and evidence corroborative of that allegation would also be evidence which could independently support a finding that McNally was participating in criminal activity. Therefore, the “tip plus corroboration” approach is not apposite to this case.
. In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), the Supreme Court indicated that the fact a law enforcement officer had arrested a suspect several months earlier was to be considered in a determination of probable cause, there for a warrantless arrest and incident search. Moreover, the Court indicated that the one arrest was at least as probative as defendant’s general reputation. 338 U.S. at 170, 69 S.Ct. 1302, 93 L.Ed. 1879. In Harris, too, the prior arrest of the defendant, not by the affiant but by a local law officer, was held to be properly considered. 403 U.S. at 582-583, 91 S.Ct. 2075, 29 L.Ed. 2d 723.
. It is important to bear in mind that this approach is not the “totality of circumstances” approach condemned in Bpmelli. Rather, this is an approach that considers only suspicious conduct as a basis for probable cause.
. “The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information— it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him.” Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584,’ 589, 21 L.Ed.2d 637 (1968).
. Search warrants were issued for several of the suspected “offices” as well as 3039 Belgrade Street. The execution of a warrant at McNally’s residence, 7812 Revere Street, failed to produce any evidence of gambling.
. McNally was not under constant surveillance during this two-month period. Thus, it cannot be said that he visited the house only ten times, or that he visited the house unobserved more than ten times.
. It is not clear from the affidavit whether the brown paper bag being carried by McNally on this date was a container of records or merely the bag in which the writing paper had been placed.
. The affidavit identified McNally’s lieutenant as Mr. Millevoi. At the time that the search was conducted at 3039 Belgrade, it was discovered that the aide had been incorrectly identified and that in fact, he was one Robert Miller.
. Carter v. United States, 231 F.2d 232, 234, (5th Cir.), cert. denied, 351 U.S. 984, 76 S.Ct. 1052, 100 B.Ed. 1498 (1956). See Wingo v. United States, 266 F.2d 421 (5th Cir., 1959).
. Spinelli v. United States, 323 U.S. 410, 438-439, 89 S.Ct. 584, 21 L.Ed.2d 637 (Fortas, J.. dissenting).
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_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. NACHTIGAL
No. 92-609.
Decided February 22, 1993
Per Curiam.
Respondent Jerry Nachtigal was charged with operating a motor vehicle in Yosemite National Park while under the influence of alcohol, in violation of 36 CFR §§ 4.23(a)(1) and (a)(2) (1992). Driving under the influence (DUI) is a class B misdemeanor and carries a maximum penalty of six months’ imprisonment, § 1.3(a); 18 U. S. C. § 3581(b)(7), and a $5,000 fine, §§ 3571(b)(6) and (e). As an alternative to a term of imprisonment, the sentencing court may impose a term of probation not to exceed five years. §§ 3561(a)(3), (b)(2). The sentencing court has discretion to attach a host of discretionary conditions to the probationary term. § 3563(b).
Respondent moved for a jury trial. Applying our decision in Blanton v. North Las Vegas, 489 U. S. 538 (1989), the Magistrate Judge denied the motion. He reasoned that because DUI carries a maximum term of imprisonment of six months, it is presumptively a “petty” offense which is not embraced by the jury trial guaranty of the Sixth Amendment. He rejected respondent’s contention that the additional penalties transformed DUI into a “serious” offense for Sixth Amendment purposes. Respondent was then tried by the Magistrate Judge and convicted of operating a motor vehicle under the influence of alcohol in violation of 36 CFR § 4.23(a)(1) (1992). He was fined $750 and placed on unsupervised probation for one year.
The District Court reversed the Magistrate Judge on the issue of entitlement to a jury trial, commenting that the language in our opinion in Blanton was “at variance with the Ninth Circuit precedent of United States v. Craner, [652 F. 2d 23 (1981)],” and electing to follow Craner because our opinion in Blanton did not “expressly overrule” Craner.: App. to Pet. for Cert. 17a, 20a.
The Court of Appeals for the Ninth Circuit agreed with the District Court, holding that Blanton is “[inapposite,” that Craner controls, and that -respondent is entitled to a jury trial. App. to Pet. for Cert. 3a-4a, judgt. order reported at 953 F. 2d 1389 (1992). The Court of Appeals reasoned that since the Secretary of the Interior, and not Congress, set the maximum prison term at six months, “[t]here is no controlling legislative determination” regarding the seriousness of the offense. App. to Pet. for Cert. 4a; see also United States v. Craner, 652 F. 2d 23, 25 (CA9 1981). The court also found it significant that the Secretary of the Interior, in whom Congress vested general regulatory authority to fix six months as the maximum sentence for any regulatory offense dealing with the use and management of the national parks, monuments, or reservations, see 16 U. S. C. §3, chose the harshest penalty available for DUI offenses. App. to Pet. for Cert. 3a-4a; see also Craner, supra, at 25. Finally, the court noted that seven of the nine States within the Ninth Circuit guarantee a jury trial for a DUI offense. App. to Pet. for Cert. 3a-4a; see also Craner, supra, at 27.
Unlike the Court of Appeals and the District Court, we think that this case is quite obviously controlled by our decision in Blanton. We therefore grant the United States’ petition for certiorari and reverse the judgment of the Court of Appeals. The motion of respondent for leave to proceed informa pauperis is granted.
In Blanton, we held that in order to determine whether the Sixth Amendment right to a jury trial attaches to a particular offense, the court must examine “objective indications of the seriousness with which society regards the offense.” Blanton, 489 U. S., at 541 (internal quotation marks omitted). The best indicator of society’s views is the maximum penalty set by the legislature. Ibid. While the word “penalty” refers both to the term of imprisonment and other statutory penalties, we stated that “[pjrimary emphasis ... must be placed on the maximum authorized period of incarceration.” Id., at 542. We therefore held that offenses for which the maximum period of incarceration is six months or .less are presumptively “‘petty.’” A defendant can overcome this presumption, and become entitled to a jury trial, only by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a “ ‘serious’” one. Id., at 543. Finally, we expressly stated that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense “‘serious.’” Id., at 545, n. 11.
Applying the above rule, we held that DUI was a petty offense under Nevada law. Since the maximum prison term was six months, the presumption described above applied. We did not find it constitutionally significant that the defendant would automatically lose his license for up to 90 days, and would be required to attend, at his own expense, an alcohol abuse education course. Id., at 544, and n. 9. Nor did we believe that a $1,000 fine or an alternative sentence of 48 hours’ community service while wearing clothing identifying him as a DUI offender was more onerous than six months in jail. Id., at 544-545.
The present case, we think, requires only a relatively routine application of the rule announced in Blanton. Because the maximum term of imprisonment is six months, DUI under 36 CFR § 4.23(a)(1) (1992) is presumptively a petty offense to which no jury trial right attaches. The Court of Appeals refused to apply the Blanton presumption, reasoning that the Secretary of the Interior, and not Congress, ultimately determined the maximum prison term. But there is a controlling legislative determination present within the regulatory scheme. In 16 U. S. C. § 3, Congress set six months as the maximum penalty the Secretary could impose for a violation of any of his regulations. The Court of Appeals offered no persuasive reason why this congressional determination is stripped of its “legislative” character merely because the Secretary has final authority to decide, within the limits given by Congress, what the maximum prison sentence will be for a violation of a given regulation.
The additional penalties imposed under the regulations are not sufficiently severe to overcome this presumption. As we noted in Blanton, it is a rare case where “a legislature packs an offense it deems ‘serious’ with onerous penalties that nonetheless do not puncture the 6-month incarceration line.” Blanton, 489 U. S., at 543 (internal quotation marks omitted). Here, the federal DUI offense carries a maximum fine of $5,000, and respondent faced, as an alternative to incarceration, a maximum 5-year term of probation. While the maximum fine in this case is $4,000 greater than the one in Blanton, this monetary penalty “cannot approximate in severity the loss of liberty that a prison term entails.” Id., at 542.
Nor do we believe that the probation alternative renders the DUI offense “serious.” Like a monetary penalty, the liberty infringement caused by a term of probation is far less intrusive than incarceration. Ibid. The discretionary probation conditions do not alter this conclusion; while they obviously entail a greater infringement on liberty than probation without attendant conditions, they do not approximate the severe loss of liberty caused by imprisonment for more than six months.
We hold that the Court of Appeals was wrong in refusing to recognize that this case was controlled by our opinion in Blanton rather than by its previous opinion in Craner. An individual convicted of driving under the influence in violation of 36 CFR § 4.23(a)(1) (1992) is not constitutionally entitled to a jury trial. The petition of the United States for certiorari is accordingly granted, and the judgment of the Court of Appeals is reversed.
It is so ordered.
There are 21 discretionary conditions which the sentencing court may impose upon a defendant. Under 18 U. S. C. § 3563(b), a court may require, among other things, that the defendant (1) pay restitution; (2) take part in a drug and alcohol dependency program offered by an institution, and if necessary, reside at the institution; (3) remain in the custody of the Bureau of Prisons during nights and weekends for a period not exceeding the term of imprisonment; (4) reside at or participate in a program of a community correctional facility for all or part of the probationary term; or (5) remain at his place of residence during nonworking hours, and, if necessary, this condition may be monitored by telephonic or electronic devices. §§ 3563(b)(3), (b)(10), (b)(11), (b)(12), (b)(20).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_state
|
54
|
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".
Howard D. LEVINE, Appellant, v. COMMITTEE ON ADMISSIONS AND GRIEVANCES OF the U. S. DISTRICT COURT FOR the DISTRICT OF COLUMBIA, Appellee.
No. 17654.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 18, 1963.
Decided Jan. 16, 1964.
Fred C. Sacks, Washington, D. C., for appellant.
Roger Robb, Washington, D. C., for appellee.
Before Bazelon, Chief Judge, and Fahy and McGowan, Circuit Judges.
FAHY, Circuit Judge.
This is an appeal from a judgment of the District Court disbarring appellant from the further practice of law before the Bar of the District Court, directing the Clerk of the District Court to strike his name from the role of attorneys admitted to practice before the court, and prohibiting him thenceforth from holding himself out to be an attorney-at-law in the District of Columbia. The judgment was entered by three members of the District Court after a hearing upon charges which had been filed by the Committee on Admissions and Grievances of the court, to which charges appellant had filed an answer. The court made Findings of Fact and Conclusions of Law which are a part of the record.
The charges were that on or about October 11, 1960, and on specified dates thereafter, appellant, through the agency or use of two men who were not lawyers solicited named persons who had been involved in personal injury accidents to employ appellant as their attorney to seek damages. It was also charged that appellant agreed to compensate the men who did the soliciting on his behalf. Six separate instances of such solicitation were set forth by the Committee.
Upon the basis of substantial evidence the court found that unethical solicitation was proved as to four of the charges, and not proved as to two, which were dismissed. The court concluded that appellant had been guilty of professional misconduct and conduct prejudicial to the administration of justice. The court accordingly entered the judgment now on appeal.
Appellant contends the evidence lacked the clarity and convincing character necessary to sustain the judgment of disbarment. We have considered the evidence, and though in substantial part it is that of a former convict and person of ill repute his testimony is corroborated. It does not stand alone. The evidence as a whole is convincing that the conduct charged and found did indeed occur.
It is urged that disbarment in the circumstances is too harsh. It is severe, but the violation by appellant of his professional responsibilities as a member of the Bar was not an isolated incident, or inadvertent; he engaged in a deliberate course of unprofessional conduct of a serious character. It is true the Committee itself does not appear to have pressed the District Court to disbar appellant. It prayed for either suspension or disbarment; and in summation at the trial the Committee made no recommendation as to the discipline the court should impose. Nevertheless, we are constrained to leave undisturbed the conclusion reached by the District Court as to the action it felt called upon to take. We would not be justified, in view of the conduct of appellant, in superimposing a different judgment of our own as to the remedy.
A few words now as to the composition of the court that decided the case.
Sections 11-1301 and 11-1302, D.C. Code, 1961, empower the United States District Court for the District of Columbia “in general term” to suspend from practice or expel a member of its bar for professional misconduct. Section 63 of the Act of March 3,1901, which governed the jurisdiction and procedure of the Supreme Court of the District of Columbia, the predecessor of the present United States District Court for the District of Columbia, provided that a general term of the court “shall be held by at least three justices.” In the legislative transformation of the Supreme Court of the District of Columbia into the United States District Court for the District of Columbia, Section 63 of the Act of March 3, 1901, was repealed, but for no purpose revolving around the meaning of ■“general term” as used in Sections 1301 and 1302 of our Code. It had become established that a court in “general term” was a court composed of not less than three members, and this meaning adheres to the language of Sections 1301 and 1302. The history of the legislation requires this conclusion as a matter of statutory construction, and it is fortified by long practice and tradition.
Affirmed.
. Chief Judge McGuire, Judge McGarraghy and Judge Kart.
. Ch. 854, 31 Stat. 1200.
. See Act of June 25, 1936, ch. 804, 49 Stat. 1921, as amended, Act of May 24, 1949, ch. 139, | 32(b), 63 Stat. 107.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
NORTH WHITTIER HEIGHTS CITRUS ASS’N v. NATIONAL LABOR RELATIONS BOARD.
No. 8819.
Circuit Court of Appeals, Ninth Circuit.
Jan. 12, 1940.
Rehearing Denied Feb. 7, 1940.
Ivan G. McDaniel, of Los Angeles, Cal., for petitioner.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Ruth Weyand, Mortimer B. Wolf, Samuel Edes, and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
Charges by the Citrus Packing House Workers Union Local No. 21,091, were laid before the National Labor Relations Board, that North Whittier Heights Citrus Association was guilty of unfair practices by interfering with, restraining and coercing twenty-eight employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act [49 Stat. 449, 29 U.S.C.A. § 151 et seq.], sometimes herein referred to as the “Act”, and sometimes herein referred to as the “Wagner Act”, by discouraging membership in a union and by discriminating in regard to hire and tenure of employment of such employees in closing its plant August 14, 1937 and not recalling these employees to work when the plant reopened August 24, 1937. Thereafter the Board issued its complaint in regard thereto, the Association filed its answer, and a hearing was had. At the opening of the hearing the Association filed its motion to dismiss the proceedings upon the ground that its employees were agricultural laborers and therefore exempt from the Board’s jurisdiction, and that its operations do not directly burden or affect interstate or foreign commerce. The hearing proceeded and the Board made and filed findings and conclusions and its order to cease and desist certain unfair labor practices and to reinstate twenty-seven of such employees, and ordered certain additional affirmative action. The complaint was dismissed in so far as it contained allegations of unfair labor practices with respect to O. W. Rudick, one of the twenty-eight employees mentioned in the complaint. The Association petitioned this court to review the proceedings and to set aside the order, to which the Board filed its answer and affirmatively requested enforcement of the order. Hereinafter the Association will be designated as the “Petitioner”, and the National Labor Relations Board as the “Board”.
There is competent and substantial evi7 dence to support the following factual account of the proceeding. Petitioner is a corporate body organized and existing under the California Agricultural Products Marketing Act [Act No. 146, General Laws of California] with a membership of about 200 citrus fruit growers. It is engaged in the business of receiving, handling, washing, grading, assembling, packing and shipping the citrus fruit of its members and others for marketing under a marketing contract with the Semi-Tropic Fruit Exchange, which has a marketing agreement with the California Fruit Growers Exchange. Through these agencies practically all of the fruit handled by Petitioner moves directly from its plant to vehicles for transportation under the direction of the California Fruit Growers Exchange into interstate and foreign commerce.
Employees of Petitioner are generally persons residing at no great distance from the packing house and most of them have worked in the packing house for many years. The work is seasonal and dependent upon fruit condition in orchard, and consistent with such influences it has been the practice of Petitioner to give notice of suspension of operations and notice when' about to reopen.
During the latter part of July, 1937, some agitation for wage increase was going around among the employees and there was some wage increase granted, but there was no general increase. The union heretofore mentioned was formed during this same month and the activity of employees toward that end was met with disapproval by the plant manager. Early in the succeeding month the manager issued a written notice to the employees that they need not join a union under coercion and that they were not under the terms of the Wagner Act. One of the employees was warned in his home by his superintendent to quit talking union in the packing house and quit going to union meetings. On the night of August 10th, 1937, a stranger was excluded from a union meeting and he immediately joined the manager who had been waiting outside in his automobile. On July 30th the manager shook his finger in employee Joseph Matlock’s face and warned him that his wife’s activity in securing membership in the union must be stopped or that he would “clean house”. There were other acts attributable to the packing house management which tend to the Conclusion that it was attempting to prevent the formation of the union.
On August 13th, 1937, Petitioner through its manager issued the following signed notice:
“To All Employees:
“Due to conditions beyond our control, orange packing will be discontinued indefinitely at 12:00 o’clock noon, Sunday, August 14, 1937. The lemon house will also shut down for an indefinite period beginning at the same time. Therefore it will be necessary that all employees in all departments of both the orange and lemon division be laid off until work is resumed, and are notified to return.
“Upon your request, your pay in full may be obtained at the office Monday afternoon.”
The plant was closed at noon of the next day, at which time there were 118 employees working in the plant. Work was resumed August 23rd, but not all of the employees were notified to return. No grader had joined the union and no grader among the laid off employees failed to be recalled to work. Twenty packers had joined the union, and while all of the nonunion packers had been recalled but three of the union employees were recalled to work. There were twenty lemon packers, of whom six had joined the union. No union employee in the lemon division of the packing house was recalled, while thirteen of the fourteen non-union employees were recalled. No other union employees were recalled to work in the packing house. Thus twenty-seven of the thirty-two union employees were not recalled, while only eight of the eighty-two non-union employees were not recalled, and some of the eight were later recalled to work. At the reopening of the plant seventeen, and shortly thereafter seventeen more nonunion new employees were put to work. No additional union men were put to work.
Mrs. Shermer, head of the orange packing department, testified that there were good workers in the union who were not recalled. Additional detailed facts may be related under the different points raised in the case.
The Board’s order was that the petitioner
“1. Cease and desist:
“(a) From interfering with, restraining, or coercing its employees in the exercise ■of the rights to self-organization,' to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con•certed activities for the purpose of collective bargaining or other mutual aid and protection, guaranteed in Section 7 of the Act.
“(b) From spying, maintaining surveillance, or employing any other manner of espionage over the meetings or meeting places and activities of the Citrus Packing House Workers Union, Local No. 21091, ■or any other labor organization of its employees.
“(c) From discouraging membership in Citrus Packing House Workers Union, Local No. 21091, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment, or by threats of such discrimination.”
Petitioner was also ordered to take affirmative action by reinstatement without prejudice to former seniority rights and privileges of all of the employees named in the complaint except O. W. Rudick, and to make them whole as to loss of wages; to post notices as to the cease and- desist ■order; and to notify the Regional Director as to steps taken in compliance with the order.
Petitioner presents its plea for relief under six designated points, and we shall consider them in the order of their presentation in its brief.
Are the Packing House Workers Agricultural Laborers?
The production and marketing of citrus fruits in California have undergone changes as have various other activities in their transition from “one man” affairs to “big business”. The public regard for the product itself has changed from that of a pretty and tasty tidbit to that of a standard widely used fruit food. Large acreages, in fact large sections of the State of California, are devoted almost wholly to this horticultural product. In the early day everything connected with the product was done “on the farm”. Experience produced better fruit, better fruit created greater demand, greater demand impelled system in handling. Possibly the most marked change in this transition was that of systematic marketing and uniformity in preparation for marketing, and these changes brought about the desirability of separating certain processes from the service of the* “farmer” to specialists. The farmer also learned through bitter experience that-individual grove product sale to middlemen or through consignment to independent fruit marketers resulted too often in ruin. The vast and comprehensive system which has been hereinbefore briefly alluded to was built up to adequately handle this large industry and to eliminate the practices which were so costly to the growers. Thus the growers themselves have separated from the farm, the work-now done in the packing house and with which we are here concerned, and have assigned it to an incorporated organization brought into being by the growers for such particular purpose. -
We shall proceed to consider whether or not those employed in petitioner’s packing house are “agricultural laborers” and as such exempt under the Act from the Board’s jurisdiction.
The pursuit of definitions of “agricultural laborers” through the cases leads to confusion because generally the case definitions have grown out of special statutory phraseology or out of judicial effort to conform to legislative intent. While it is quite impossible to phrase -an all inclusive yet accurate definition of the term “agricultural laborer” as it is used in the Wagner Act the intent of Congress is not at all obscure.
The very first statement of the Act is: “Section 1 [§ 151]. The denial by employers of the right of employees to organize and the refusal by employers to accept the. procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce [interstate and foreign] ^ »
In Section 2, subdivision (3), of the Act it is provided that unless the Act explicitly states otherwise, the term “employee” shall include “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, * * * but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse.”
The purpose of the Act is clear and we find the Act specifically excepting three kinds of employees from its provisions. It would seem profitable to consider whether or not there is a “common denominator” in these three exemptions. We think there is. Why is “any individual employed by his parent or spouse” exempted? Because (not excluding other reasons) in this classification there never would be a great number suffering under the difficulty of negotiating with the actual employer and there would be no need for collective bargaining and conditions leading to strikes would not obtain. The same holds good as to “domestic service”, and the same holds good as to “agricultural laborer” if the term be not enlarged beyond the usual idea that the term suggests. Enlarge the meaning of any of these terms beyond their common usage and confusion results. 'When every detail of farming from plowing to delivering the produce to the consumer was done by the farmer and his “hired man”, this common denominator was present. But when in the transition of citrus fruit growing from this independent action to the great industry of the present in which the fruit is passed from the individual grower through contract to a corporation for treatment in a packing house owned and run by such corporation, to be delivered by this corporation to an allied corporation for transportation and market, we think the common denominator has ceased to exist. The fact that these corporations are allied through their membership of growers does not, in our opinion, affect the situation under consideration. See Pinnacle Packing Company et al. v. State Unemployment Commission, decided February 19, 1937, by the Circuit Court of Jackson County, Oregon.
Petitioner in his brief points to these important changes and concludes, “It therefore becomes important to devise some test or touchstone to determine whether certain practices are agricultural or industrial”. It can hardly be contended that agriculture and industry are opposites generically speaking. Agriculture is a great industry. So, of course, petitioner has used these terms in their more limited meanings, and has perhaps unwittingly discovered his sought after “touchstone”.
Industrial activity commonly means the treatment or processing of raw products in factories. When the product of the soil leaves the farmer, as such, and enters a factory for processing and marketing it has entered upon the status of “industry”. In this status of this industry there would seem to be as much need for the remedial provisions of the Wagner Act, upon principle, as for any other industrial activity.
Petitioner maintains that the nature of the work is the true test. Perhaps it would more nearly conform to the true test to say that the nature of the work modified by the custom of doing it determines whether the worker is or is not an agricultural laborer.
Petitioner argues that if each member of the non-profit cooperative corporation that runs the packing house were to personally hire and direct those doing his own packing and sorting, the work would be agricultural and his employees would be agricultural laborers; that it follows, therefore, that in the case of the same members acting under a single organization to accomplish the same result there can be no change in the nature of the work nor in the status of the persons doing it. The conclusion does not follow. The factual change in the manner of accomplishing the same work is exactly what does change the status of those doing it. The premise laid down by petitioner in this phase of its argument is not, however, the exact situation facing us. The packing house activity is much more than the mere treatment of the fruit. When it reaches the packing house it is then in the practical control of a great selling organization which accounts to the individual farmer under the terms of the statute law and its own by-laws.
There are many instances related in the authorities showing that work done in one way is agricultural labor and workmen doing the same nature of work but under different circumstances are not agricultural laborers, and vice versa. See Trullinger v. Fremont County, 223 Iowa 677, 273 N. W. 124. Also see Miller & Lux, Inc. v. Industrial Accident Commission, 179 Cal. 764, 178 P. 960, 7 A.L.R. 1291, in which it is held that a workman employed by the Land Company to repair farming equipment was engaged in farm labor; Mullen v. Little, 186 App.Div. 169, 173 N.Y.S. 578, 580, where a farm laborer storing ice for use on the farm was held to be a farm laborer for the reason that the work was “incidental to farm purposes”; and Maryland Casualty Co. v. Dobbs, Tex.Civ.App., 1934, 70 S.W.2d 751, where one working for a company whose business was the spraying of citrus trees was held not to be a farm laborer. There is confusion in the so-called threshing machine cases, as may be ascertained by reference to the note in 13 A.L.R. 955.
So to be agricultural labor, the work need not be strictly related to the crop, and every work related strictly to the crop is not of necessity agricultural labor and those doing it agricultural laborers. It is said in Re Boyer, 65 Ind.App. 408, 117 N.E. 507, 508: “While the threshing of wheat may be a part of the work necessary to be done on the farm, the farmer himself rarely does it. On the contrary, he has it done by some one who is specially equipped with the machinery to do this kind of work. Wheat threshing is a business or industrial pursuit in and of itself, entirely separate and independent of farming.” Here is an admirable example of the nature of the work, modified by the custom of doing it affecting the category into which the work falls — agricultural or industrial. See, H. Duys & Co. v. Joseph M. Tone, Commissioner, 125 Conn. 300, 5 A.2d 23.
The opinion in the case of Pinnacle Packing Co. v. State Unemployment Commission, supra, a case arising under a cooperative arrangement for processing and marketing fruit, contains some apt language. We quote: “The fruit growers who are engaged in the care, cultivation, picking, and delivery of the products of the orchard to be processed, graded, packed and marketed are engaged in agricultural labor and are exempt from the provisions of the statute. As soon as the fruit is delivered by the growers to the plaintiff for processing, grading, packing, and marketing, then the exemption ceases. The plaintiffs engaged in processing, grading, and packing and marketing the fruits are engaged in industry and are, therefore, subject to the provisions of the act and are not exempt as being engaged in agricultural labor.”
We conclude that the workers in petitioner’s packing house are not agricultural laborers and are therefore not exempt from the operation of the Act.
Interstate Commerce.
Petitioner contends in its second point as follows: “Briefly, it is the contention of petitioner that when it handles the fruit by picking, grading and packing the same, the fruit is not yet in the channels of trade and commerce, either intrastate or interstate”.
At this late date it hardly seems necessary to devote a great deal of attention to this branch of the case. The facts show that the work done by the packing house is in every sense specialized factory work applied to fruit that has left the orchard. The major part of the fruit is moved directly by the packing house workers, through the agency of two allied corporations, into the rail cars for prompt movement in interstate trade. Most certainly any considerable interference in such work would affect the free flow of interstate commerce. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 98 F.2d 488, 495, certiorari denied 306 U.S. 643, 59 S.Ct. 582, 83 L.Ed. 1043; National Labor Relations Board v. Santa Cruz Fruit Packing Co., 9 Cir., 91 F.2d 790, 791, affirmed 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138, certiorari denied 304 U.S. 575, 58 S.Ct. 1045, 82 L.Ed. 1539; National Labor Relations Board v. Biles-Coleman Lumber Co., 9 Cir., 98 F.2d 18.
It is also too late to argue that there would still be a free flow of fruit entering interstate commerce fully up to the market demand even if no fruit from this packing house should be shipped, and therefore no prohibited effect upon interstate commerce would result. The law condemns practices which substantially affect the free and normal flow of interstate commerce, under conditions that are not denied as existing here. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S. Ct. 96, 44 L.Ed. 136; McCall v. People of the State of California, 136 U.S. 104, 10 S.Ct. 881, 34 L.Ed. 391, and authorities last above cited.
Were the parties “employees”?
If they were “employees” were they entitled to reinstatement with back pay?
Petitioner next argues that the notice of the shutdown from the manager to .the packing, house workers constitutes a discharge and a complete break in the relation of employer and employee. There were in this business seasonal shutdowns and occasional temporary shutdowns. The Board found that the shutdown in question was not in the nature of an unfair labor practice, but was in fact caused by the condition of the fruit on the trees. The notice itself treats the shutdown as due to conditions beyond the control of the employer and states that “Therefore it wih be necessary that all employees * * be laid off until work is resumed, and are notified to return.” It is argued by petitioner that unless the relationship of employer and employee continued to exist through the period of the lay off, which continued relationship it denies, the Board’s order of reinstatement with back pay from date of resumption cannot be sustained.
This position is based upon § 10 (c) of the Act, 29 U.S.C.A. § 160(c), which authorizes the Board in proper cases to “take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate' the policies of the Act [this chapter]” and upon the definition of the term “employee” as found in § 2 (3) of the Act. This definition is as follows: “(3) The term ‘employee’ shall include any employee * * * and * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice * * Petitioner holds that the work has ceased as to the laid off workers and, as found by the Board, the cessation of work was not “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice”. That therefore they ceased to be employees when the packing house closed down. The Board meets petitioner upon this issue with two answers. The first is that the workers did not cease to be employees with the layoff for the reason that under a proper construction of the statute their “work has not ceased” with the layoff. It is our opinion that the Board’s construction on this phase of the proceeding has support. This shutdown and layoff was no more than a suspension of work. It was not a termination of work. It was in accordance with long established custom. The relation of employer and employee does not always depend upon continuity of actual every day work. In the instant suspension of actual operation the employees of long standing and experience were “laid off until work is resumed” on account of a condition of fruit. The notice' itself holds out a “notice to return” when conditions have become right, which came about ten days later. In the circumstances, we see no reason for differing with the Board in its holding that the layoff because of the temporary shutdown did not sever the relation of employer and employee.
The evidence clearly shows that when the plant reopened after the fruit was in a condition to be handled, the workers named in the complaint other than O. W. Rudick were not put back to work because of their’ union activities. These employees were ready, willing and able to resume work with the reopening of the plant. The Board found that O. W. Rudick was not entitled to reinstatement and he has not resisted this conclusion. In these circumstances the Board’s order for reinstatement of these workers and for back pay from resumption of plant activity was proper. Michaelson v. United State, 7 Cir., 291 F. 940, 942; Iron Molders’ Union v. Allis-Chalmers Co., 7 Cir., 166 F. 45, 52, 20 L. R.A.,N.S., 315; Dail-Overland Co. v. Wyllis-Overland, Inc., D.C., 263 F. 171, 188; Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 136-138, 112 A.L.R. 948; National Labor Relations Board v. Carlisle Lumber Co., supra.
The Board also contends that whether or not the suspension of work for the ten days terminated the relation of employer a.nd employee between the packing house and those at work when the suspension became effective, the order of reinstatement with pay is supported by the provision of § 8 (3) of the Act, 29 U.S.C.A. §-158 (3), prohibiting “discrimination in regard to hire”. As we agree with the Board that the shutdown did not affect the relation of employee and employer as to those working at the time of the shutdown, it is unnecessary for us to consider this additional point.
Subppenas.
Petitioner’s next point is to the effect that requests to the Board for the issuance of certain subpoenas were met with the reply that: “It is necessary for you to furnish statement of reason for application and of evidence you expect to be established by testimony of individuals together with statement of their positions before the Board can act on your application.” Petitioner claims that such requirement encroached upon its rights but that in order to go forward with the proceeding it was compelled to grant this request. Petitioner does not specify any prejudice done it, and a very careful perusal of the evidence does not convince us that it suffered any prejudice by complying with the Board’s request. In the circumstances, even if we were to hold that the request was wholly unwarranted in law (upon which subject we express no opinion) we would not be warranted in nullifying the Board’s order. As tersely put in the Board’s brief, “Due process, however, is not concerned with technicalities, but with prejudicial infringement of substantial rights * * * ”, citing National Labor Relations Board v. Mackay Radio & Tel. Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L. Ed. 1381, and Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129.
Petitioner complied with the Board’s request as to all of the persons for whom it requested subpcenas excepting' as to one Grace Stevens. Upon the request for subpoenas under the compliance it did not mention Grace Stevens. It held her name out for the purpose of complaining that it was deprived of her testimony. This procedure did not put petitioner in any better position, in fact, it quite adversely affected it, for the Board had the right to assume that no request was before it regarding a subpoena for her attendance upon the hearing.
The Findings of Fact.
The next point may be clearly understood by quoting the black faced heading under it in petitioner’s brief: “The so-called findings of fact upon which board bases its order are not findings of fact but are admixture of recitation of evidence, argument of the person or persons making the findings, and conclusions of fact not based upon evidence and in utter disregard of material and competent evidence.” We need not consider this point for the reason that petitioner does not point to any single instance in the record supporting the assertion. We are not compelled to search the record for undesignated error claimed upon an omnibus assertion.
Due Process.
The next point is a claim that: “The Board has failed to accord petitioner a fair, full and impartial hearing and in its conduct'of the proceedings has denied petitioner due process of law.”
The statement under the last preceding - point applies as well here.
Petitioner is denied .relief, and the order of the Board is ordered enforced.
It should, however, he understood that this proceeding concerns packing house workers and packing house work solely, and that there are here no facts as to picking the fruit nor as to any treatment of the orchard. It appears from the stipulation of facts that petitioner to some extent does handle the picking, spraying, fertilizing, etc., and that some of the workers in the packing house are at times employed by petitioner to do such work. However, the employment for packing house work and for orchard work are separate and apart.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
FAIRMONT FOODS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 12680.
United States Court of Appeals Fourth Circuit.
Argued Jan. 10, 1969.
Decided Feb. 28, 1969.
Carl D. Hall, Tulsa, Okl. (John M. Keefer, and Hall & Sublett, Tulsa, Okl., on brief) for petitioner.
Seth D. Rosen, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul J. Spielberg, Atty., N. L. R. B., on brief) for respondent.
Before BOREMAN, WINTER and CRAVEN, Circuit Judges.
PER CURIAM:
This case is before the court upon petition of Fairmont Foods, Inc., (Fairmont) pursuant to section 10(f) of the National Labor Relations Act, as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) to review and set aside the order of the National Labor Relations Board issued against UtoteM of Oklahoma (the company), a wholly-owned subsidiary of Fairmont. This court has jurisdiction under section 10(e) and (f) of the Act since Fairmont does business within this judicial circuit.
The Board found that the company violated section 8(a) (1) of the Act by, inter alia, coercive interrogation of employees as to union activities: threatening employees with loss of jobs if they selected a union; and proposing an independent contractor arrangement in an effort to prevent union organization. We find substantial evidence on the record as a whole to support the Board’s findings of section 8(a) (1) violations. In fact, before us, the company concedes the correctness of these findings.
The Board found that the company violated section 8(a) (3) and (1) of the Act by discriminatorily discharging Jerry Dennis and Steven Fryar for their union activities. The company sought to justify the discharges because of a substantial shortage in inventory at a company store where Dennis and Fryar were the only employees. We have examined the record and reach the conclusion that the Board’s findings of discriminatory discharges are supported by substantial evidence and that the order of reinstatement of these two employees should be enforced.
Next, the Board found that the company violated section 8(a) (5) and (1) of the Act, first, by refusing to bargain with the union which represented a majority of its employees in an appropriate unit and, second, by taking unilateral action affecting wages and other terms and conditions of employment when the company was under a duty to bargain with the union.
This case is another in a series of cases arising in this circuit in which the Board order to bargain is based upon “authorization cards” signed by employees and not by reason of certification of the union as bargaining agent after a secret ballot election. Consistently, in several cases we have disapproved the Board’s orders to bargain based upon authorization cards.
We are aware that on December 16, 1968, (393 U.S. 997, 89 S.Ct. 482, 21 L.Ed.2d 462) the Supreme Court granted review of this court’s decision in N. L. R. B. v. Gissel Packing Co., Inc. (398 F.2d 336). Counsel for the Board has requested that we defer further argument and final decision on the section 8(a) (5) portions of the instant case pending the Supreme Court’s decision in Gissel. The request is granted. However, the Board’s order in other respects will be enforced.
Enforcement granted in part and consideration of other portions of Board’s order deferred.
. The Board’s decision, and order are reported at 172 NLRB No. 21.
. General Steel Products, Inc. v. N. L. R. B., 398 F.2d 339 (4 Cir. 1968) ; N. L. R. B. v. Heck’s, Inc., 398 F.2d 337 (4 Cir. 1968) ; N. L. R. B. v. Gissel Packing Co., Inc., 398 F.2d 336 (4 Cir. 1968) ; N. L. R. B. v. S. S. Logan Packing Company, 386 F.2d 562 (4 Cir. 1967) ; Crawford Manufacturing Co. v. N. L. R. B., 386 F.2d 367 (4 Cir. 1967).
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_stid
|
10
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Michael Eugene CANNADY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections; Attorney General, State of Florida, Respondents-Appellees.
No. 89-3812.
United States Court of Appeals, Eleventh Circuit.
May 16, 1991.
Donald Scott Modesitt, Tallahassee, Fla., for petitioner-appellant.
Cynthia A. Shaw and Edward C. Hill, Asst. Attys. Gen., Tallahassee, Fla., for respondents-appellees.
Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and HENDERSON, Senior Circuit Judge.
DUBINA, Circuit Judge:
The appellant, Michael Eugene Cannady (“Cannady”), is currently serving a life sentence with a mandatory minimum term of imprisonment of 25 years. Cannady was convicted of first degree murder, robbery, and kidnapping in the Circuit Court for Bay County, Florida. He appeals the district court’s judgment denying his petition for writ of habeas corpus in which he raised four grounds for relief: (1) judicial misconduct; (2) prosecutorial misconduct; (8) ineffective assistance of counsel; and (4) illegally obtained confession. For the reasons which follow, we reverse the district court and remand for a grant of the writ.
I. BACKGROUND
Cannady was convicted of the first degree murder of William Carrier, the night auditor at the Ramada Inn in Panama City, Florida (“the victim”). The only substantial evidence against Cannady regarding the murder consisted of incriminating statements he made to Officer Frank McKeithen (“McKeithen”), an investigator with the Bay County Sheriff’s office. Can-nady told McKeithen that he stole some money from the Ramada Inn, kidnapped the victim, drove him to a secluded wooded area and shot him. The jury reached a guilty verdict but recommended a life sentence.
Judge Russell Bower adjudged Cannady guilty of murder in the first degree; however, Judge Bower rejected the jury’s recommendation and sentenced Cannady to death. Cannady filed a timely notice of appeal to the Florida Supreme Court, which affirmed Cannady’s conviction but reduced his court-imposed death penalty sentence to life imprisonment with a mandatory minimum term of incarceration of 25 years. Subsequently, Cannady filed a Rule 3.850 motion in the Circuit Court for Bay County addressing four main issues: (1) judicial misconduct; (2) prosecutorial misconduct; (3) ineffective assistance of counsel; and (4) illegally obtained confession. Judge Bower denied the Rule 3.850 motion, and Cannady appealed to the District Court of Appeal, First District of Florida, which affirmed per curiam. Cannady then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Florida. The United States Magistrate Judge entered a Report and Recommendation recommending that all relief be denied. Cannady filed a timely objection to the magistrate judge’s recommendation which was overruled by the district court. The district court entered judgment in favor of the respondents and against Cannady. It is from that judgment that Cannady appeals.
II. DISCUSSION
The first issue we consider on appeal is whether Cannady’s confession that he killed the victim was illegally obtained. Cannady argues that the confession should not have been admitted into evidence because it was not freely and voluntarily given, and he did not knowingly waive his right to have an attorney present when he made incriminating statements to McKeithen. This court, however, in deciding the ultimate issue of voluntariness of a defendant’s confession, may substitute its independent judgment after a review of the entire record. Sullivan v. Alabama, 666 F.2d 478 (11th Cir.1982).
Cannady became a suspect in the murder while he was incarcerated on other charges. McKeithen read Cannady his Miranda rights and questioned him several times about the murder. At one of the initial interviews, Cannady presented an alibi defense. McKeithen investigated the alibi and discovered its inaccuracy. Then McKeithen confronted Cannady that he had been seen in Panama City on the night before the murder. McKeithen asked Can-nady if he killed the victim, and Cannady, at some point during the interview said, “I think I should call my lawyer.” Continuing the questioning, McKeithen asked Cannady if he wanted “to talk about it,” whereupon Cannady broke down and admitted the killing. After this outburst, McKeithen interrogated Cannady in detail about the murder. Cannady then read and signed a written waiver of rights form and gave a transcribed confession.
There is conflicting testimony in the record by McKeithen as to whether the voluntary admission was made before or after Cannady requested counsel. McKeithen testified at his deposition and at trial that Cannady first stated, “I think I should call my lawyer,” and then he broke down and stated, “I didn’t mean to kill that man ... it wasn’t supposed to happened that way.” At the suppression hearing, McKeithen testified that Cannady first stated, “I didn’t mean to kill that man ... it wasn’t supposed to happen that way,” and then stated he needed to speak to his attorney. Whether the spontaneous statements were made before or after Cannady requested an attorney is immaterial since the statements were not made in response to interrogation. See Miranda, 384 U.S. at 467-479, 86 S.Ct. at 1624-1630.
Cannady’s outburst in which he stated that “he didn’t mean to kill that man” is not due to be suppressed. Voluntary and spontaneous comments by an accused, even after Miranda rights are asserted, are admissible evidence if the comments were not made in response to government questioning. See Lightbourne v. Dugger, 829 F.2d 1012, 1019 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988); United States v. Suggs, 755 F.2d 1538, 1542 (11th Cir.1985). Cannady’s initial statement was not the product of interrogation. It was spontaneously and voluntarily made by Canna-dy during questioning by McKeithen as to his whereabouts on the night of the murder. At oral argument before this court, Cannady’s counsel alluded to the fact that these statements were voluntarily made.
The statements which followed Cannady’s request for counsel are a different matter. We conclude that all subsequent statements should have been suppressed because they were obtained in violation of Cannady’s fifth amendment right. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that the use of the petitioner’s confession against him at trial violated his right under the fifth and fourteenth amendments to have counsel present during custodial interrogation when the petitioner had previously requested an attorney. 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 police-initiated interrogation after being again advised of his rights. Edwards, 451 U.S. at 484-87, 101 S.Ct. at 1884-86. According to Edwards, once an accused requests an attorney, all questioning and interrogation must cease until the attorney is present.
If the request for counsel is equivocal (for example, a request to have both counsel and talk), further inquiries by the police must be limited to clarifying the initial request for counsel. No statement made after the request and before it is clarified may overcome the Miranda bar. Thomas v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979). See also United States v. Pena, 897 F.2d 1075 (11th Cir.1990). Cannady’s statement, “I think I should call my lawyer,” was an unequivocal request for counsel. McKeithen knew Cannady wanted to speak to an attorney because McKeithen pushed the phone toward Cannady and waited for him to make the call. When Cannady did not call an attorney, McKeithen then asked, “would you like to talk about it?” This statement is not a clarifying one. It is a question directly about the murder and any answer elicited from Cannady after this statement is a violation of Cannady’s constitutional rights. See Owens v. Alabama, 849 F.2d 536, 539 (11th Cir.1988). In Owens, this court held that continued questions about a murder violated Miranda rights when the accused had stated that he thought he would let the state appoint him counsel. Here, McKeithen’s question to Cannady was obviously whether Cannady wanted to talk about the crime, not whether Cannady wanted an attorney. McKeithen knew that Cannady wanted an attorney, and he should have procured an attorney for him.
Because we hold that Cannady’s petition for writ of habeas corpus is due to be granted on the basis that his confession was illegally obtained, we need not address the remaining issues presented in this appeal.
In conclusion, we reverse the district court’s denial of Cannady’s petition for writ of habeas corpus and remand this case to the district court with directions to grant the writ and afford the state an opportunity to retry Cannady.
REVERSED AND REMANDED WITH DIRECTIONS.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. At oral argument, Modesitt, counsel for Can-nady, stated: “Well, he [Cannady] said, ‘It wasn't supposed to happen that way ... I didn't mean to kill that man.’ Now, I don’t think this is a confession ... I think it's an incriminating statement, but I’d rather go back to trial with that one than the next two that occurred after that.” Cannady’s counsel at oral argument also stated: "If the Court finds that it was a voluntary statement when the defendant said, ‘I think I ought to talk to a lawyer’ and then he volunteers and says, ‘Well, I didn’t mean to kill that man ... it wasn’t supposed to happen that way.’ If the court finds that to be voluntary and admissible, I may agree that might be appropriate. But the following statements after that were the product of interrogation by the officer; they were [there was] no effort to clarify whether he wanted an attorney or not and there was no need for clarification.... ”
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_authoritydecision
|
C
|
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.
SULLIVAN v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.
No. A-409.
Decided November 29, 1983
Per Curiam.
Applicant was sentenced to death in November 1973 for the murder of the manager of a restaurant he had robbed. His conviction and sentence were affirmed by the Florida Supreme Court and this Court denied certiorari. Sullivan v. State, 303 So. 2d 632 (Fla. 1974), cert. denied, 428 U. S. 911 (1976). After exhausting state postconviction remedies, Sullivan v. State, 372 So. 2d 938 (Fla. 1979), applicant filed his first habeas petition in 1979. The District Court held an evidentiary hearing and denied the writ. The Eleventh Circuit affirmed, and this Court denied certiorari. Sullivan v. Wainwright, 695 F. 2d 1306 (CA11 1983), cert. denied, post, p. 922. In October 1983, applicant filed his second petition for postconviction relief in state court. The denial of that relief was affirmed on appeal, Sullivan v. State, 441 So. 2d 609 (Fla. 1983), and applicant filed a second petition for writ of habeas corpus in the federal court. Following a hearing, the District Court declined to issue the writ, and refused to issue a stay of execution or a certificate of probable cause to appeal. The Eleventh Circuit affirmed, with one judge dissenting in part. That court issued a temporary stay in order to allow a vote on applicant’s suggestion for rehearing en banc. That stay was lifted when the suggestion was denied.
This application for a stay pending completion of the rehearing vote was presented to Justice Powell as Circuit Justice on November 28, 1983. Counsel requested that the papers be treated as an application for a stay pending filing of a writ of certiorari under 28 U. S. C. § 2101(f), and Justice Powell referred the application to the Court.
Applicant raises essentially five claims: (i) that he was denied the right to counsel; (ii) that he was denied effective assistance of counsel; (iii) that the jury that convicted him was biased in favor of the prosecution; (iv) that he was denied proportionality review; and (v) that the Florida death penalty statute has been applied discriminatorily against blacks.
The first three of these claims have been presented several times previously in both state and federal courts and have been found to be meritless. Applicant’s claim that he was entitled to proportionality review was addressed and found meritless by the Florida Supreme Court. Id., at 613-614. His case was one of the earliest to be decided under Florida’s current death penalty statute. The State Supreme Court has used it as a reference point, comparing all subsequent capital cases to applicant’s case to ensure proportionality. It therefore cannot be alleged that the State has failed to compare this sentence with others decided under this statute to ensure proportionality. Whatever our decision in Pulley v. Harris, No. 82-1095 (cert. granted, 460 U. S. 1036 (1983)), may be, it will not disturb the Florida Supreme Court’s ruling.
Applicant apparently first raised the issue of discriminatory application of the statute in a supplement to his most recent state habeas corpus petition, which was filed on November 15, 1983. Counsel for applicant, who is white, present voluminous statistics that they say support the claim of discriminatory application of the death sentence. Although some of the statistics are relatively new, many of the studies were conducted years ago and were available to applicant long before he filed his most recent state and federal habeas petitions. The Florida Supreme Court and both the Federal District Court and the Eleventh Circuit have considered these data and determined in written opinions that they are insufficient to show that the Florida system is unconstitutionally discriminatory. On the basis of the record before this Court, we find there is no basis for disagreeing in this case with their decisions.
This case has been in litigation for a full decade, with repetitive and careful reviews by both state and federal courts, and by this Court. There must come an end to the process of consideration and reconsideration. We recognize, of course, as do state and other federal courts, that the death sentence is qualitatively different from all other sentences, and therefore special care is exercised in judicial review.
The application for a stay of execution is denied.
It is so ordered.
Justice White and Justice Stevens concur in the denial of a stay.
In addition, applicant was a plaintiff in an action attacking the Florida executive-clemency procedure. See Sullivan v. Askew, 348 So. 2d 312 (Fla.), cert. denied, 434 U. S. 878 (1977).
Applicant’s case has been considered by at least 10 state and federal courts other than this one, and twice before by this Court.
Judge Anderson dissented in the court below on the ground that the statistics presented in this case were equal in quality to those presented with respect to Georgia’s death penalty statute in Spencer v. Zant, 715 F. 2d 1562, 1578-1583 (CA11 1983). In that case and the companion case of Ross v. Hopper, 716 F. 2d 1528, 1539 (CA11 1983), the Eleventh Circuit remanded the statistical claim to the District Court for a hearing. This case is different from those because in this case both of the lower courts, as well as this Court, have had the opportunity to consider the statistics. In Spencer, the Eleventh Circuit found it “unlikely that the district court could have adequately analyzed the [statistical] evidence insofar as it was not then available except by live testimony.” 715 F. 2d, at 1582. The court therefore remanded to the District Court to consider the evidence. Ross was treated identically because it had been consolidated with Spencer in the District Court. Ross, supra, at 1539.
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_casetyp1_2-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Charles W. SMITH, John Pasley and Ralph Serini, Appellants, Cross-Appellees, v. HUSSMANN REFRIGERATOR COMPANY and Local 13889, United Steelworkers of America, Appellees, Cross-Appellants.
Nos. 78-1034, 78-1073 and 78-1092.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 10, 1979.
Decided Jan. 21, 1980.
Rehearing and Rehearing En Banc Denied March 26, 1980.
Louis Gilden, St. Louis, Mo., for Charles W. Smith et al.
Carl B. Frankel, Pittsburgh, Pa., for Union, Local 13889.
Mark J. Bremer, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., for Hussmann Refrigerator.
Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges, en banc.
FLOYD R. GIBSON, Chief Judge.
Plaintiffs Charles Smith, John Pasley and Ralph Serini brought suit in the United States District Court for the Eastern District of Missouri against Hussmann Refrigerator Company (hereinafter referred to as Hussmann or the company) and Local 13889, United Steelworkers of America (hereinafter referred to as the union) for breach of the collective bargaining agreement and breach of the duty of fair representation. In Counts II and III, plaintiff Pasley, a black male, charged violations of 42 U.S.C. §§ 1981 and 1985 (1976), alleging that defendants discriminated against him on the basis of his race by denying him the right to make and enforce contracts and by conspiring to deprive him of the equal protection of the law.
The claims of breach of the collective bargaining agreement and breach of the duty of fair representation were tried to a jury which rendered a verdict against both defendants in favor of plaintiff Smith in the amount of $6500 and plaintiff Pasley in the amount of $2500. Also, in response to special interrogatories, the jury found that plaintiffs Smith and Serini should be awarded the classification of maintenance pipefitter, and that plaintiff Pasley’s seniority in the pipefitter classification should be upgraded. The District Court entered judgment in accordance with the jury verdict, but subsequently denied plaintiffs’ motion for a supplementary judgment to effect the advisory opinion of the jury represented by the answers to special interrogatories, and granted defendants’ motions for judgments notwithstanding the verdict. Plaintiffs Pasley, Smith and Serini appeal from the grant of defendants’ motions and the denial of their motion. They request reinstatement of the jury verdict and an order implementing the jury’s advisory opinion.
The claims of race discrimination set forth in Counts II and III were removed from jury consideration, and the court, finding no evidence of racial discrimination, determined that neither defendant had violated 42 U.S.C. §§ 1981 and 1985. Plaintiff Pasley claims error in the removal of this claim from the jury and also appeals from the decision on its merits.
On cross-appeal, defendants argue that if the judgment notwithstanding the verdict is reversed, they are entitled to a new trial for the reasons that plaintiffs had no right to a jury trial; certain jury instructions were improper; the District Court erred in excluding evidence of the National Labor Relations Board’s „ (NLRB) dismissal of plaintiffs’ charges of unfair representation; and the award indicates that the jury was impassioned or confused.
This appeal was initially submitted to a panel of this court which issued an opinion on January 3, 1979. Thereafter a petition for rehearing en banc was filed and granted. The panel opinion is hereby vacated and the judgment is modified in accordance with this opinion. We affirm the District Court’s judgment on Counts II and III of the complaint but reverse the District Court’s granting of the motions notwithstanding the verdict and reinstate the jury verdict against Hussmann and the union. We further remand to the District Court for reconsideration of whether the jury’s advisory opinions regarding classification and seniority status should be implemented.
I.
At all times relevant to this proceeding, plaintiffs were employees at Hussmann’s Bridgeton, Missouri, plant and were members of the union, and a collective bargaining agreement between defendants was in effect pursuant to which the union represented approximately 1500 production and maintenance employees at Hussmann’s Bridgeton plant. This agreement specifically provided that in the matter of promotions seniority should govern when the factors of ability and skill are substantially equal between those being considered.
On April 22, 1975, Hussmann, in accordance with the collective bargaining agreement, posted two openings for temporary positions as maintenance pipefitters. Sixty-four employees bid for these openings. Hussmann’s maintenance foreman, Schwartz, interviewed groups of the most senior employees and selected Pasley and Smith oh the basis of superior skill and ability. On May 6, 1975, Hussmann posted an opening for a permanent maintenance pipefitter. Although forty-six employees bid for this position, it was awarded to Pasley since he was already working in the classification. Three more positions in this classification, one permanent and two temporary, opened on May 13, 1975. An employee who had previously held the classification received the permanent job. Plaintiff Serini and another employee, Watson, received the temporary positions. Subsequently, plaintiff Smith bid into a permanent position as maintenance pipefitter as a result of an opening posted May 20, 1975.
Twenty-six unsuccessful bidders filed grievances claiming that Hussmann had violated the collective bargaining agreement in making the promotions. Of these grievances, the union selected four to process. These four had been filed by employees with greater seniority than the successful bidders. The union processed these grievances through the five-step grievance and arbitration procedure, as described in the collective bargaining agreement.
At the arbitration hearing, the union called each of the four grievants to testify about his skill and ability. The successful bidders were not invited to attend the hearing and their only representation was presented by Hussmann’s foreman, Schwartz, who related the substance of his interviews with the successful bidders as well as the substance of his interviews with the grievants.
On October 3, 1975, the arbitrator issued his award. He clearly denied two of the grievances on the grounds that the griev-ants lacked substantial equality of skill and ability. The arbitrator granted two grievances, those of Dattilo and Krassinger, and ordered Hussmann to give them the jobs with retroactive seniority and back pay. Further, the award named as those entitled to hold the maintenance pipefitter classification: Dattilo, Pasley, Smith, Watson, Krassinger and Serini.
Hussmann originally interpreted the arbitrator’s decision as awarding the classification to all six employees named, with their seniority in the classification in the order listed. While the plaintiffs did not rejoice at this outcome, they were satisfied with this resolution of the dispute because they retained the classification. The union, however, objected to the award arguing that the arbitrator did not have authority to create six maintenance pipefitter classifications from four posted jobs. In addition the award had two technical errors: it misstated the seniority of plaintiff Smith, giving him ten years more seniority than he actually had, and awarded Watson a position for which he had not bid.
Officials of the union and the company met to discuss these problems with the award. At this time they agreed that only four employees should be granted the classification and that those employees would be Dattilo, Krassinger, Watson and Pasley. Then, ostensibly to seek “clarification” of the award, they returned to the arbitrator. A meeting for this purpose was held October 31, 1975. No additional testimony was taken and no employees were present except the representatives of Hussmann and the union. The parties informed the arbitrator of their prior agreement and presented him with the correct seniority dates and bid sheets.
The arbitrator’s supplemental and corrective decision, issued November 4, 1975, awarded the pipefitter classification to the four most senior employees in the order of their seniority. Thus, Dattilo, Krassinger, Watson, and Pasley received the classification. Smith and Serini were entitled to be paid for the time they actually performed the job, but on any future vacancies their bid would be considered on the same basis as any other employee without seniority in the classification. This decision, however, retained the error in plaintiff Smith’s seniority, which the arbitrator later corrected after it was brought to his attention.
At the time of the second meeting with the arbitrator, the parties also agreed that a grievance filed against Serini by another employee, Pogue, would be processed against Pasley instead of Serini. At the time Pogue filed the grievance, Serini appeared to hold the fourth senior position in the classification, but by the time the union arbitrated the grievance Pasley held that position. Pasley requested permission to be present at this arbitration hearing, but his request was denied. Pogue attended the hearing at the union’s invitation. Subsequently, Pogue’s grievance was denied.
Plaintiffs, who had learned from a union official the result of the second meeting with the arbitrator before he issued his decision, attempted to file grievances to challenge the November 4 arbitration decision. Smith and Serini alleged that they were entitled to the classification, and Pas-ley challenged the realignment of his seniority. The union refused to process the grievances, relying on the language of the collective bargaining agreement that requires an arbitrator’s decision to be considered the final resolution of a dispute. In the process of trying to file his grievance, plaintiff Smith asked the president of the local union if he could be permitted to speak at a regular monthly union meeting in order to bring the matter before the membership. He was told that he would not be given the floor. Plaintiff Serini mailed a written request to the union to have the matter placed on the agenda of the next monthly scheduled meeting of the local union, but he never received a response to this request. Union officials, however, did report the results of the arbitration hearings to the membership at a regular meeting.
II.
On appeal, plaintiffs contend that the District Court erred in granting the defendants’ motions for judgment notwithstanding the verdict because the jury was properly instructed on the relevant law and was presented with sufficient evidence to find that the union had breached its duty of fair representation and that defendants breached the terms of the collective bargaining agreement.
The standard for granting judgment notwithstanding the verdict is the same as for a directed verdict. Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir. 1968). As stated by this court in Lord v. Wilkerson, 542 F.2d 1034, 1035 (8th Cir. 1976):
A motion for a directed verdict should be granted “only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party.” Barclay v. Burlington Northern, Inc., supra, 536 F.2d 263 at 267 (8th Cir.); Decker-Ruhl Ford Sales, Inc. v. Ford Motor Credit Co., 523 F.2d 833, 836 (8th Cir. 1975). As this Court has noted,
[A] motion for a directed verdict is properly denied where the evidence presented allows reasonable men in a fair exercise of their judgment to draw different conclusions. * * * In making this determination, the evidence, together with all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. (Citations omitted.) Vickers v. Gifford-Hill and Co., 534 F.2d 1311, 1315 (8th Cir. 1976), quoting Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir. 1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971).
See also Voegeli v. Lewis, 568 F.2d 89, 92 (8th Cir. 1977); Banks v. Koehring Co., 538 F.2d 176, 178 (8th Cir. 1976); Griggs v. Firestone Tire and Rubber Co., 513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975).
After a careful review of the jury instructions and the evidence, we conclude that the jury’s verdict should have been upheld and reverse the judgment of the District Court on this matter.
III.
The duty of fair representation developed as a corollary to the collective bargaining system promoted by Congress and administered by the NLRB. This system grants to a union the power to act as exclusive bargaining representative and necessarily subordinates the interests of an individual employee to the collective interests of all employees in the bargaining unit. Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Because of the reduction in the individual rights of employees thus represented by a union, the controlling statutes have long been interpreted as imposing upon the union, as exclusive bargaining agent in the negotiation and administration of the collective bargaining contract, a responsibility and duty fairly to represent as individuals as well as collectively the employees within the bargaining unit. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 97 L.Ed. 1048; Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 202, 65 S.Ct. 226, 89 L.Ed. 173 (1944).
The rationale for this statutory interpretation was clearly expressed by the United States Supreme Court:
It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those for whom it is exercised unless so expressed.
Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 202, 65 S.Ct. 226, 232, 89 L.Ed. 173 (1944).
While the scope of the duty of fair representation has never been precisely defined, it “is a legal term of art, incapable of precise definition,” and calls for an ad hoc review of each factual situation, Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181, 182 (4th Cir. 1972), its evolution through the fires of court decisions leaves no doubt about its purpose. St. Clair v. Local Union No. 515 of the International Brotherhood of Teamsters, 422 F.2d 128, 130 (6th Cir. 1969). The duty of fair representation balances the collective and the individual interests of employees in the bargaining unit as these interests are represented by a labor organization in order to promote the goals of congressional labor legislation, to minimize industrial strife and encourage full production. In particular, “the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, 386 U.S. at 182, 87 S.Ct. at 913.
In order to meet its purpose, the scope of the duty of fair representation is in some ways very broad. The responsibility fairly to represent employees is equal in scope to the union’s broad authority in the negotiation and administration of the collective bargaining agreement. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). Thus the duty attaches to all stages of the negotiation and administration process and is owed to all employees within the unit represented. However, because of the need to balance the individual interests of employees with their collective interests, the duty of fair representation must not be construed to subvert the basic purposes of organized labor by inhibiting union representation of collective interests. The Supreme Court has stated that in the negotiation process, “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, supra, 345 U.S. at 338, 73 S.Ct. at 686. The standard by which to measure union conduct was further defined in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In the administration of the collective bargaining agreement, the union has “a statutory obligation to serve the interests of all members [of a designated unit] without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Id. at 177, 87 S.Ct. at 910. See also King v. Space Carriers, Inc., 608 F.2d 283 at 286-287 (8th Cir. 1979).
The Fourth Circuit Court of Appeals clearly articulated the import of Vaca in Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181, 183 (4th Cir. 1972):
A union must conform its behavior to each of these three separate standards. First, it must treat fractions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.
******
* * * Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation.
IV.
Applying this standard to the union’s conduct in processing the grievances challenging plaintiffs’ promotions, we find that sufficient evidence existed for the jury to conclude that the union exceeded the permissible range of reasonableness with regard to its representation of plaintiffs. There can be no question that the scope of the duty of fair representation encompasses plaintiffs’ interests in this situation. Plaintiffs were employees within the bargaining unit and processing grievances is within the broad authority of the union as the employees’ exclusive agent in the administration of the collective bargaining agreement. See Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. 903. The processing of the grievances against plaintiffs was intended to and did decide plaintiffs’ rights to the promotions, which plaintiffs had received from management on the basis of their superior skill and ability. See Tedford v. Peabody Coal Company, 533 F.2d 952, 959 (5th Cir. 1976) (“the union in making its decision not to put [grievant] back in his old position had a duty to consider not only the interests of [the grievant] but also those of the twelve employees who would suffer from the resulting rollback * * *.”); Bond v. Local Union 823, International Brotherhood of Teamsters, 521 F.2d 5, 9 (8th Cir. 1975) (union processed “test” case grievance rather than plaintiff’s grievance). This is analogous to when a union processes the grievances of some employees regarding their seniority status. Upholding the grievances necessarily derogates the seniority of other employees. Butler v. Local Union 823, International Brotherhood of Teamsters, 514 F.2d 442, 445 (8th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975). In that situation the union must fairly represent both groups of employees and may take a position in favor of one group only on the basis of an informed, reasoned judgment regarding the merits of the claims in terms of the language of the collective bargaining agreement. See Humphrey v. Moore, 375 U.S. 385, 84 S.Ct. 868, 11 L.Ed.2d 370 (1964); Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1015 (3d Cir.), cert. denied, 484 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Price v. International Brotherhood of Teamsters, 457 F.2d 605, 611 (8d Cir. 1972).
This duty fairly to represent all employees is not diminished because plaintiffs’ rights were created by Hussmann. The particular provision of the collective bargaining agreement at issue provided that employees with superior skill and ability were entitled to promotion over those with greater seniority only if the company elected to assert its right to promote on the basis of skill and ability. This provision, typically referred to as a “modified seniority clause,” controlled the promotion machinery. The company asserted its right to choose on the basis of skill and ability because of the belief that the position of maintenance pipefitter required greater expertise than most positions within the company. It is significant that no openings in this classification had occurred for over thirteen years; thus the company did not have any established past practices for promotions into this classification with which the union could challenge compliance. Hussmann had a right to choose on the basis of skill and ability, and by its exercise of this right it vested plaintiffs with rights under the collective bargaining agreement to hold the positions to which they were promoted. The collective bargaining agreement clearly provided that employees promoted by the company on the basis of superior skill and ability are entitled to hold their promotions even against challenges by employees with greater seniority. Thus, plaintiffs possessed rights under the collective bargaining agreement which the union had a fiduciary duty to protect. The fact that their rights were contingent upon selection by the company became irrelevant once that contingency was resolved. The condition of selection is no different from the condition that plaintiffs possess superior skill and ability, which was the condition necessarily challenged by the grievants.
The nature of the union’s duty in a dispute among employees is not changed by the company’s taking a position in the grievance procedure. Even though a company may take a position favorable to a particular group of employees, the union may not abandon that particular group to the representation as afforded by the company favoring them. See Deboles v. Trans World Airlines, Inc., 552 F.2d 1005 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Price v. International Brotherhood of Teamsters, 457 F.2d 605 (3d Cir. 1972). The union is the agent of all employees in the unit and owes a fiduciary duty to represent their interests and rights under the collective bargaining agreement. Here the union not only abandoned the plaintiffs but took an adversary attitude toward them regarding the positions they had received by reason of the company’s opinion of their skill and ability. The union took the position that any representation of plaintiffs would be made by the company, while the company declared that it had no duty to represent plaintiffs and properly protected only its self-interest which may or may not have corresponded to the interests of plaintiffs.
The first aspect of the union’s conduct in processing the grievances challenging plaintiffs’ promotions that indicates possible substandard representation of plaintiffs’ interests is the union’s strict adherence to the principle of seniority. The, union argues that in processing the grievances it merely followed a policy of favoring employees with the greatest seniority, and that this cannot be a ground for finding a breach of the duty of fair representation because it was merely in good faith applying a neutral principle. Since we agree with the District Court’s finding that there is no evidence that personal hostility toward plaintiffs motivated the use of this policy, we are squarely presented with the issue of whether this course of action combined with the other elements of the union’s conduct toward plaintiffs could be found “so unreasonable and arbitrary as to constitute a violation of the duty of fair representation.” Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181 (4th Cir. 1972).
The union’s choice to process all grievances based on seniority discriminated against employees receiving promotions on the basis of merit. This conduct may be viewed as a perfunctory dismissal of the interests and rights of plaintiffs. The union simply failed to represent them in any way. The modified seniority clause specifically required balancing the interests of merit and seniority whenever Hussmann deemed that the position warranted selection on the basis of merit. Under the collective bargaining agreement, after the company chose to select on the basis of merit, three separate considerations were relevant in determining the right of any employee to be promoted. These were (1) his selection by the company, (2) on the basis of skill and ability, (3) superior to the skill and ability of any senior employee who had bid for the position. Disregard for the qualification of superior skill and ability could manifest an arbitrary and perfunctory approach to promotion interests, as could ignoring the qualification of seniority or selection by the company. See Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181, 183 (4th Cir. 1972); De Arroyo v. Sindicato de Trabajadores Packing House, AFL-CIO, 425 F.2d 281, 284 (1st Cir.), cert. denied sub nom. Puerto Rico Telephone Co. v. De Arroyo, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114 (1970).
As one commentator, after reviewing the applicable cases, concluded:
When the Union’s effort to represent a member of the collective bargaining unit falls below the level at which the court can conclude that the union has made a conscious, earnest effort to represent him, liability should flow. Upon a claim of substandard treatment, the union should be required to come forward with evidence to show why it followed the course of representation that it did. If the union’s behavior is based on a conscious assessment of fairly competing values, it should be given broad discretion in its choice of representation tactics. But the union should not be allowed to plead, in effect, that it chose the easier path because of convenience or rigid adherence to “union policy.”
Bryson, A Matter of Wooden Logic: Labor Law Preemption and Individual Rights, 51 Tex.L.Rev. 1037, 1102 (1973).
In this case the union has taken the position that “a union’s freedom to follow seniority in job disputes cannot coexist with a duty to evaluate the comparative skills of competing employees.” It initially selected which grievances it would process solely on the basis of seniority. It never inquired of plaintiffs about their experience or other qualifications. The only evidence presented to indicate any concern on the part of the union about the relative skill and ability of plaintiffs was the testimony of the union’s international representative who stated that he had reviewed the reports of foreman Schwartz regarding his selection of plaintiffs. In contrast to this superficial review of plaintiffs, the union representative personally discussed the backgrounds, experience, and other qualifications of the senior grievants with them and invited them to testify at the first arbitration hearing.
While we do not suggest that a union must hold internal hearings to investigate the merits of every grievance brought to it, in certain situations it may be inappropriate for a union to tie its own hands by blind adherence to a policy of favoring employees with seniority in order to avoid disputes between employees. “Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance processes.” Humphrey v. Moore, supra, 375 U.S. at 349-50, 84 S.Ct. at 372. The need for a union fairly to evaluate the merits of grievances has been recognized repeatedly. “In administering the grievance and arbitration machinery as statutory agent of the employees, a union must, in good faith and in a nonarbitrary manner, make decisions as to the merits of particular grievances.” Vaca v. Sipes, supra, 386 U.S. at 194, 87 S.Ct. at 919. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 558, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Foust v. International Brotherhood of Electrical Workers, 572 F.2d 710, 715-16 (10th Cir. 1978), rev’d in part on other grounds 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); Minnis v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 531 F.2d 850, 853-54 (8th Cir. 1975); Ruzicka v. General Motors Corp., 528 F.2d 912 (6th Cir. 1975). In particular, this court has recognized that certain circumstances compel a union to evaluate the individual capabilities of employees. Petersen v. Rath Packing Co., 461 F.2d 312, 316 (8th Cir. 1972). In the context of this case the jury may have concluded that the union failed to take adequate measures to insure a fair resolution of the dispute created by the union’s processing of the grievances of the senior employees.
By negotiating the modified seniority clause to control promotion decisions, the union has limited management in an area regarded by management as one of its most important prerogatives. This limitation on management has shifted some of the burden for making promotions onto the union. Responsible union participation can ensure that the use of the seniority criterion in these decisions is compatible with efficiency and employee morale. Union involvement that is not characterized by care and thoughtful preplanning can lead to subversion of the collective bargaining agreement by processing baseless grievances. S. H. Slichter, J. J. Healy & E. R. Livernash, The Impact of Collective Bargaining on Management 178-210 (1960). See also Humphrey v. Moore, supra, 375 U.S. at 349-50, 84 S.Ct. 363. A policy of processing all grievances based on seniority regardless of their merit may even significantly alter the negotiated contract by chilling the exercise of the prerogative to promote on the basis of merit. Since a business runs on a cost-benefit basis, the cost of arbitrating the grievances of all senior employees may at times be greater than the benefit of advancing the most skilled worker. Adherence to the union’s policy in this situation would effectively set aside a provision of the collective bargaining agreement. “Such a cavalier treatment of the contract is scarcely consistent with the contemplation of the parties and seems contrary to the union members’ understanding and expectations when they ratified the contract.” Summers, The Individual Employee’s Rights Under the Collective Agreement: What Constitutes Fair Representation? 126 U.Pa.L.Rev. 251, 264 (1977). See also Vaca v. Sipes, supra, 386 U.S. at 191-92, 87 S.Ct. 903; Humphrey v. Moore, supra, 375 U.S. at 349-50, 84 S.Ct. 363.
The jury could also have found evidence of a breach of the duty of fair representation on the basis that the union failed to notify plaintiffs of the arbitration hearing or invite them to attend. Regardless of the initial evaluation of the grievances, it is obvious that once a union has chosen to arbitrate a dispute adequate presentation of all employee claims is necessary to ensure fairness in the arbitration. See Clark, The Duty of Fair Representation: A Theoretical Structure, 51 Tex.L.Rev. 1119, 1169 (1979). Since a union’s failure to inform an employee whose interests are before an arbitrator of the arbitration hearing is not necessarily sufficient to support a claim of unfair representation, courts have carefully searched the records for prejudice to the employee. When the position of the employee has been adequately presented, no breach has been found. Cf. King v. Space Carriers, Inc., 608 F.2d 283, at 288-289 (8th Cir. 1979). For example, in Humphrey v. Moore, 375 U.S. 334, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), a joint committee decided to dovetail the seniority lists of two merging companies. The Supreme Court, holding that the union was entitled to take a position in the dispute between employees, carefully noted that the disfavored employees had been given notice of the hearing and that three stewards representing them were present at the hearing and given every opportunity to state their position. Humphrey v. Moore, supra, 375 U.S. at 350-51, 84 S.Ct. 363. See also Ramsey v. NLRB, 327 F.2d 784, 788 (7th Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964); Bernard v. McLean Trucking Co., 429 F.Supp. 284, 286-87 (D.Kan.1977); Siskey v. General Teamsters, Chauffeurs, Warehousemen & Helpers, Local No. 261, 419 F.Supp. 48, 53 (W.D.Pa.1976); DeBelsey v. Chemical Leaman Tank Lines, 368 F.Supp. 1159, 1163 (E.D.Pa.1973); Davidson v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local No. 1189, 332 F.Supp. 375, 378-79 (D.N.J.1971). However, when the employee is prejudiced by not having notice of the hearing because the union inadequately prepared or presented his or her interests, a breach of the duty of fair representation has been demonstrated. Bond v. Local Union 823, International Brotherhood of Teamsters, 521 F.2d 5, 9 (8th Cir. 1975); Thompson v. International Association of Machinists, 258 F.Supp. 235, 239 (E.D.Va.1966).
The union claims that plaintiffs could not have been deprived of a fair hearing because Hussmann fully and adequately defended their position. The company, however, has consistently taken the position that it had no duty to represent plaintiffs. At trial, Hussmann presented evidence that even plaintiffs did not expect it to represent their interests. Furthermore, regardless of whether plaintiffs were inadequately represented at the first arbitration hearing, the evidence is clear that no one asserted their interests at the time of resubmission to the arbitrator.
The union also appears to contend that specific representation of plaintiffs was unnecessary since the only evidence of plaintiffs’ skills and abilities cognizable at the hearing was as they were known by the company foreman, Schwartz, who had selected plaintiffs. The union asserts that this obviated any need for plaintiffs to testify before the arbitrator. The facts belie this argument. Although at the first arbitration hearing Schwartz testified as to his evaluation and knowledge of the skill and abilities of both plaintiffs and the griev-ants, the union requested the grievants to attend and testify as to their abilities and work experience. This ex parte presentation by the union may well have hindered plaintiffs’ effort to secure an objective consideration of their promotions on the basis of superior skill and ability because the arbitrator’s decision appears to rely heavily upon the testimony of the grievants relating their background experience in terms of work they performed outside the plant. The arbitrator clearly viewed this experience as determinative in his decision regarding relative skill and ability. Although the company had some knowledge of plaintiffs’ outside work, more work experience, while in a sense cumulative, could indicate greater skill and ability. Since the griev-ants appeared to have experience not related to the arbitrator by the company representative who interviewed them, it can be inferred that plaintiffs would also be able to relate their outside work experience better than the company representative. Thus, the failure to invite plaintiffs to attend the arbitration hearing may have left them inadequately represented regarding a crucial factor in dispute.
The fairness of the ultimate arbitration award also necessarily involved consideration of the union’s and company’s resubmission to the arbitrator of the initial decision. The jury could have found that the resubmission constituted a breach of the duty of fair representation and breach of the collective bargaining agreement’s provision providing that arbitration is a final and binding resolution of a dispute. It was undisputed that at the second hearing no additional testimony was taken. Only representatives of Hussmann and the union met with the arbitrator, presented him with the correct seniority dates and bid sheets, and requested him to clarify which four employees should be awarded the four positions that had opened
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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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.
ARKANSAS WRITERS’ PROJECT, INC. v. RAGLAND, COMMISSIONER OF REVENUE OF ARKANSAS
No. 85-1370.
Argued January 20, 1987
Decided April 22, 1987
MARSHALL, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, and O’ConnoR, JJ., joined, and in Parts I, II, III-B, IV, and V of which Stevens, J., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 234. Scalia, J., filed a dissenting opinion; in which Rehnquist, C. J., joined, post, p. 235.
Anne Owings Wilson argued the cause and filed briefs for appellant.
John Steven Clark argued the cause for appellee. With him on the brief were R. B. Friedlander and Joseph V. Svoboda.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by Jack Novik and Philip E. Kaplan; for the City & Regional Magazine Association by Donald M. Middlebrooks; for the Magazine Publishers Association by David Minton; for the Miami Herald Publishing Co. et al. by Edward Soto, Gerald B. Cope, Jr., W. Terry Maguire, and Parker Thomson; for Time Inc., by E. Barrett Prettyman, Jr., David J. Saylor, and John G. Roberts, Jr.; and for the Times Mirror Co. et al. by Rex S. Heinke, William A. Mese, and Jeffrey S. Klein.
Briefs of amici curiae urging affirmance were filed for the Territory of American Samoa et al. by the Attorneys General for their respective jurisdictions as follows: Thomas J. Miller of Iowa, Leulumoega S. Lutu of American Samoa, Joseph Lieberman of Connecticut, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Jim Jones of Idaho, William J. Guste, Jr., of Louisiana, Hubert H. Humphrey III of Minnesota, Michael Turpén of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, Jim Mattox of Texas, David L. Wilkinson of Utah, and Jeffrey L. Amestoy of Vermont; and for the State of Maryland by Stephen H. Sachs, Attorney General, Ralph S. Tyler III, Assistant Attorney General, and Carmen M. Shepard, Special Assistant Attorney General.
Justice Marshall
delivered the opinion of the Court.
The question presented in this case is whether a state sales tax scheme that taxes general interest magazines, but exempts newspapers and religious, professional, trade, and sports journals, violates the First Amendment’s guarantee of freedom of the press.
J — l
Since 1935, Arkansas has imposed a tax on receipts from sales of tangible personal property. 1935 Ark. Gen. Acts 233, §4, pp. 593, 594, now codified at Ark. Stat. Ann. §84-1903(a) (1980 and Supp. 1985). The rate of tax is currently four percent of gross receipts. § 84-1903 (three percent); Ark. Stat. Ann. §84-1903.1 (Supp. 1985) (additional one percent). Numerous items are exempt from the state sales tax, however. These include “[g]ross receipts or gross proceeds derived from the sale of newspapers,” §84-1904(f) (newspaper exemption), and “religious, professional, trade and sports journals and/or publications printed and published within this State . . . when sold through regular subscriptions.” §84-1904(j) (magazine exemption).
Appellant Arkansas Writers’ Project, Inc., publishes Arkansas Times, a general interest monthly magazine with a circulation of approximately 28,000. The magazine includes articles on a variety of subjects, including religion and sports. It is printed and published in Arkansas, and is sold through mail subscriptions, coin-operated stands, and over-the-counter sales. In 1980, following an audit, appellee Commissioner of Revenue assessed tax on sales of Arkansas Times. Appellant initially contested the assessment, but eventually reached a settlement with the State and agreed to pay the tax beginning in October 1982. However, appellant reserved the right to renew its challenge if there were a change in the tax law or a court ruling drawing into question the validity of Arkansas’ exemption structure. Record 46-47.
Subsequently, in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983), this Court held unconstitutional a Minnesota tax on paper and ink used in the production of newspapers. In January 1984, relying on this authority, appellant sought a refund of sales tax paid since October 1982, asserting that the magazine exemption must be construed to include Arkansas Times. It maintained that subjecting Arkansas Times to the sales tax, while sales of newspapers and other magazines were exempt, violated the First and Fourteenth Amendments. The Commissioner denied appellant’s claim for refund. App. to Juris. Statement 12-14.
Having exhausted available administrative remedies, appellant filed a complaint in the Chancery Court for Pulaski County, Arkansas, seeking review of the Commissioner’s decision. The complaint also stated a claim under 42 U. S. C. §§1983 and 1988 for injunctive relief and attorney’s fees. The parties stipulated that Arkansas Times is not a “newspaper” or a “religious, professional, trade or sports journal” and that, during the relevant time period, appellant had paid $15,838.22 in sales tax. The Chancery Court granted appellant summary judgment, construing § 84 — 1904(j) to create two categories of tax-exempt magazines sold through subscriptions, one for religious, professional, trade, and sports journals, and one for publications published and printed within the State of Arkansas. No. 84-1268 (Pulaski Cty. Chancery Ct., Mar. 29, 1985). Because Arkansas Times came within the second category, the court held that the magazine was exempt from sales tax and appellant was entitled to a refund. The court determined that resolution of the dispute on statutory grounds made it unnecessary to address the constitutional issues raised in appellant’s § 1983 claim.
The Arkansas Supreme Court reversed the decision of the Chancery Court. 287 Ark. 155, 697 S. W. 2d 94 (1985). It construed § 84 — 1904(j) as creating a single exemption and held that, in order to qualify for this exemption, a magazine had to be a “religious, professional, trade, or sports periodical.” Id., at 157, 697 S. W. 2d, at 95. Concluding that “neither party has questioned the constitutionality of the exemption,” the State Supreme Court failed to address appellant’s First and Fourteenth Amendment claims. Ibid.
On petition for rehearing, the court issued a supplementary opinion in which it acknowledged that appellant had pursued its constitutional claims and that they “should have been discussed” in the court’s original opinion. Id., at 157, 157A, 157B, 698 S. W. 2d 802, 803 (1985). It rejected appellant’s claims of discriminatory treatment, reasoning that exemptions granted to other publications need not be considered, because:
“[I]t would avail [appellant] nothing if it wins its argument. ... It is immaterial that an exemption in favor of some other taxpayer may be invalid, as discriminatory. If so, it is the exemption that would fall, not the tax against the [Arkansas] Times.” Id., at 157A, 698 S. W. 2d, at 803.
As to appellant’s First Amendment objections, the court noted that this Court has held that “the owners of newspapers are not immune from any of the ‘ordinary forms of taxation’ for support of the government.” Ibid., quoting Grosjean v. American Press Co., 297 U. S. 233, 250 (1936). In contrast to Minneapolis Star, supra, and Grosjean, supra, the Arkansas Supreme Court concluded that the Arkansas sales tax was a permissible “ordinary form of taxation.” Because the court did not find that appellant’s First and Fourteenth Amendment rights had been violated, it did not consider the claim for attorney’s fees under § 1988.
We noted probable jurisdiction, 476 U. S. 1113 (1986), and we now reverse.
II
As a threshold matter, the Commissioner argues that appellant does not have standing to challenge the Arkansas sales tax scheme. Extending the reasoning of the court below, he contends that, since appellant has conceded that Arkansas Times is neither a newspaper nor a religious, professional, trade, or sports journal, it has not asserted an injury that can be redressed by a favorable decision of this Court and therefore does not meet the requirements for standing set forth in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472 (1982).
We do not accept the Commissioner’s notion of standing, for it would effectively insulate underinclusive statutes from constitutional challenge, a proposition we soundly rejected in Orr v. Orr, 440 U. S. 268, 272 (1979). The Commissioner’s position is inconsistent with numerous decisions of this Court in which we have considered claims that others similarly situated were exempt from the operation of a state law adversely affecting the claimant. See, e. g., Armco Inc. v. Hardesty, 467 U. S. 638 (1984); Carey v. Brown, 447 U. S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). Contrary to the Commissioner’s assertion, appellant has alleged sufficient a personal stake in the outcome of this litigation. “The holding of the [Arkansas] cour[t] stand[s] as a total bar to appellant’s relief; [its] constitutional attack holds the only promise of escape from the burden that derives from the challenged statut[e].” Orr v. Orr, supra, at 273.
A
Our cases clearly establish that a discriminatory tax on the press burdens rights protected by the First Amendment. See Minneapolis Star, 460 U. S., at 591-692; Grosjean v. American Press Co., supra, at 244-245. In Minneapolis Star, the discrimination took two distinct forms. First, in contrast to generally applicable economic regulations to which the press can legitimately be subject, the Minnesota use tax treated the press differently from other enterprises. 460 U. S., at 581 (the tax “singles] out publications for treatment that is . . . unique in Minnesota tax law”). Second, the tax targeted a small group of newspapers. This was due to the fact that the first $100,000 of paper and ink were exempt from the tax; thus “only a handful of publishers pay any tax at all, and even fewer pay any significant amount of tax.” Id., at 591.
Both types of discrimination can be established even where, as here, there is no evidence of an improper censorial motive. See id., at 579-580, 592 (“Illicit legislative intent is not the sine qua non of a violation of the First Amendment”). This is because selective taxation of the press — either singling out the press as a whole or targeting individual members of the press — poses a particular danger of abuse by the State.
“A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When the State imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency.” Id., at 585.
Addressing only the first type of discrimination, the Commissioner defends the Arkansas sales tax as a generally applicable economic regulation. He acknowledges the numerous statutory exemptions to the sales tax, including those exempting newspapers and religious, trade, professional, and sports magazines. Nonetheless, apparently because the tax is nominally imposed on receipts from sales of all tangible personal property, see §84-1903, he insists that the tax should be upheld.
On the facts of this case, the fundamental question is not whether the tax singles out the press as a whole, but whether it targets a small group within the press. While-we indicated in Minneapolis Star that a genuinely nondiscriminatory tax on the receipts of newspapers would be constitutionally permissible, 460 U. S., at 586, and n. 9, the Arkansas sales tax cannot be characterized as nondiscriminatory, because it is not evenly applied to all magazines. To the contrary, the magazine exemption means that only a few Arkansas magazines pay any sales tax; in that respect, it operates in much the same way as did the $100,000 exemption to the Minnesota use tax. Because the Arkansas sales tax scheme treats some magazines less favorably than others, it suffers from the second type of discrimination identified in Minneapolis Star.
Indeed, this case involves a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine’s tax status depends entirely on its content. “[AJbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S., at 95. See also Carey v. Brown, 447 U. S., at 462-463. “Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984).
If articles in Arkansas Times were uniformly devoted to religion or sports, the magazine would be exempt from the sales tax under § 84 — 1904(j). However, because the articles deal with a variety of subjects (sometimes including religion and sports), the Commissioner has determined that the magazine’s sales may be taxed. In order to determine whether a magazine is subject to sales tax, Arkansas’ “enforcement authorities must necessarily examine the content of the message that is conveyed . . . .” FCC v. League of Women Voters of California, 468 U. S. 364, 383 (1984). Such official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press. See Regan v. Time, Inc., supra, at 648.
Arkansas’ system of selective taxation does not evade the strictures of the First Amendment merely because it does not burden the expression of particular views by specific magazines. We rejected a similar distinction between content and viewpoint restrictions in Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 (1980). As we stated in that case, “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Id., at 537. See FCC v. League of Women Voters of California, supra, at 383-384; Metromedia, Inc. v. San Diego, 453 U. S. 490, 518-519 (1981) (plurality opinion); Carey v. Brown, supra, at 462, n. 6.
Nor are the requirements of the First Amendment avoided by the fact that Arkansas grants an exemption to other members of the media that might publish discussions of the various subjects contained in Arkansas Times. For example, exempting newspapers from the tax, see §84-1904(f), does not change the fact that the State discriminates in determining the tax status of magazines published in Arkansas. “It hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him.” Regan v. Taxation With Representation of Washington, 461 U. S. 540, 553 (1983) (Blackmun, J., concurring). See also Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 757, n. 15 (1976) (“We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means”).
B
Arkansas faces a heavy burden in attempting to defend its content-based approach to taxation of magazines. In order to justify such differential taxation, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Minneapolis Star, 460 U. S., at 591-592.
The Commissioner has advanced several state interests. First, he asserts the State’s general interest in raising revenue. While we have recognized that this interest is an important one, see id., at 586, it does not explain selective imposition of the sales tax on some magazines and not others, based solely on their content. In Minneapolis Star, this interest was invoked in support of differential treatment of the press in relation to other businesses. Ibid. In that context, we noted that an interest in raising revenue,
“[standing alone, . . . cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available: the State could raise the revenue by taxing businesses generally, avoiding the censorial threat implicit in a tax that singles out the press.” Ibid, (footnote omitted).
The same is true of a tax that differentiates between members of the press.
The Commissioner also suggests that the exemption of religious, professional, trade, and sports journals was intended to encourage “fledgling” publishers, who have only limited audiences and therefore do not have access to the same volume of advertising revenues as general interest magazines such as Arkansas Times. Brief for Appellee 16. Even assuming that an interest in encouraging fledgling publications might be a compelling one, we do not find the exemption in § 84 — 1904(j) of religious, professional, trade, and sports journals narrowly tailored to achieve that end. To the contrary, the exemption is both overinclusive and underinclusive. The types of magazines enumerated in § 84 — 1904(j) are exempt, regardless of whether they are “fledgling”; even the most lucrative and well-established religious, professional, trade, and sports journals do not pay sales tax. By contrast, struggling general interest magazines and struggling specialty magazines on subjects other than those specified in §84-1904(j) are ineligible for favorable tax treatment.
Finally, the Commissioner asserted for the first time at oral argument a need to “foster communication” in the State. Tr. of Oral Arg. 28, 32. While this state interest might support a blanket exemption of the press from the sales tax, it cannot justify selective taxation of certain publishers. The Arkansas tax scheme only fosters communication on religion, sports, and professional and trade matters. It therefore does not serve its alleged purpose in any significant way.
C
Appellant argues that the Arkansas tax scheme violates the First Amendment because it exempts all newspapers from the tax, but only some magazines. Appellant contends that, under applicable state regulations, see nn. 1 and 2, supra, the critical distinction between newspapers and magazines is not format, but rather content: newspapers are distinguished from magazines because they contain reports of current events and articles of general interest. Just as content-based distinctions between magazines are impermissible under prior decisions of this Court, appellant claims that content-based distinctions between different members of the media are also impermissible, absent a compelling justification.
Because we hold today that the State’s selective application of its sales tax to magazines is unconstitutional and therefore invalid, our ruling eliminates the differential treatment of newspapers and magazines. Accordingly, we need not decide whether a distinction between different types of periodicals presents an additional basis for invalidating the sales tax, as applied to the press.
IV
In the Chancery Court, appellant asserted its First and Fourteenth Amendment claims under 42 U. S. C. § 1983, as well as a corresponding entitlement to attorney’s fees under § 1988. Because this Court has found a constitutional violation, appellant urges us to consider its cause of action under § 1983 and order an award of attorney’s fees. However, the state courts have not yet indicated whether they will exercise jurisdiction over this claim and we therefore remand to give them an opportunity to do so.
The parties recognize that federal and state courts have concurrent jurisdiction over actions brought under § 1983, see, e. g., Martinez v. California, 444 U. S. 277, 283, n. 7 (1980), although the Tax Injunction Act, 28 U. S. C. § 1341, ordinarily precludes federal courts from entertaining challenges to the assessment of state taxes. The parties disagree, however, on whether the state court must exercise jurisdiction in such cases. We leave it to the courts on remand to consider the necessity of entertaining this claim.
V
We stated in Minneapolis Star that “[a] tax that singles out the press, or that targets individual publications within the press, places a heavy burden on the State to justify its action.” 460 U. S., at 592-593. In this case, Arkansas has failed to meet this heavy burden. It has advanced no compelling justification for selective, content-based taxation of certain magazines, and the tax is therefore invalid under the First Amendment. Accordingly, we reverse the judgment of the Arkansas Supreme Court and remand for proceedings not inconsistent with this opinion.
It is so ordered.
The newspaper exemption was added in 1941. 1941 Ark. Gen. Acts 386, § 4, p. 1060. Gross Receipts Tax Regulations of 1981, adopted by the Arkansas Commissioner of Revenue define a newspaper as “a publication in sheet form containing reports of current events and articles of general interest to the public, published regularly in short intervals such as daily, weekly, or bi-weekly, and intended for general circulation.” GR-48(A)(1), reproduced at Record 50.
The magazine exemption was added in 1949. 1949 Ark. Gen. Acts 152, § 2, p. 491. The regulations define a publication as “any pamphlet, magazine, journal, or periodical, other than a newspaper, designed for the information or entertainment of the general public or any segment thereof.” GR-48(A)(5), reproduced at Record 50. The term “regular subscription” is defined as “the purchase by advance payment of a specified number of issues of a publication over a certain period of time, and delivered to the subscriber by mail or otherwise.” GR-48(A)(6), reproduced at Record 50.
Appellant’s First Amendment claims are obviously intertwined with interests arising under the Equal Protection Clause. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 94-95 (1972). However, since Arkansas’ sales tax system directly implicates freedom of the press, we analyze it primarily in First Amendment terms. See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585, n. 7 (1983).
Appellant maintains that Arkansas Times is the only Arkansas publication that pays sales tax. App. 13 (Affidavit of Alan Leveritt). The Commissioner contends that there are two periodicals, in addition to Arkansas Times, that pay tax. Tr. of Oral Arg. 22. Whether there are three Arkansas magazines paying tax or only one, the burden of the tax clearly falls on a limited group of publishers.
This challenge was made in the courts below, but it was not addressed by either the Chancery Court or the Arkansas Supreme Court. Since the Chancery Court construed the magazine exemption to cover sales of Arkansas Times, it was not necessary to reach the issue. The Arkansas Supreme Court ruled that the sales tax was a generally applicable regulation and did not examine the impact of the magazine exemption or the newspaper exemption. 287 Ark. 155, 157A, 157B, 698 S. W. 2d 802, 803 (1985).
The Chancery Court construed the magazine exemption to apply to sales of Arkansas Times and therefore did not reach the federal cause of action. The Arkansas Supreme Court reversed the Chancery Court’s construction of the statute and held that there was no First Amendment violation. It found that it was not necessary to consider appellant’s claim for attorney’s fees under § 1988.
Whether state courts must assume jurisdiction over these cases is not entirely clear. See Note, Section 1983 in State Court: A Remedy for Unconstitutional State Taxation, 95 Yale L. J. 414, 420-421 (1985). See also Spencer v. South Carolina Tax Comm’n, 281 S. C. 492, 316 S. E. 2d 386, aff’d by an equally divided Court, 471 U. S. 82 (1984). Of course, an af-firmance by an equally divided Court is not entitled to precedential weight. See Neil v. Biggers, 409 U. S. 188, 192 (1972).
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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_genapel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
Rafael Capella RIVERA et al., Petitioners, Appellees, v. Tomas CONCEPCION, Warden, et al., Respondents, Appellants.
No. 72-8024.
United States Court of Appeals, First Circuit.
Submitted Oct. 27, 1972.
Decided Nov. 6, 1972.
J. F. Rodriguez-Rivera, Acting Sol. Gen. and Americo Serra, Asst. Sol. Gen., for respondents on motion for stay.
Luis F. Abreu Elias, Rio Piedras, P. R., for petitioners on memorandum in opposition to motion for stay.
Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
ALDRICH, Senior Judge.
Petitioners were convicted in the Superior Court of Puerto Rico in August 1970, after some 23 trial days, of violating the Commonwealth’s Explosives Law, 25 L.P.R.A. § 492, and for conspiracy, 33 L.P.R.A. § 161. They sought bail pending appeal from the Superior Court, but after a prompt evidentiary hearing this was refused. The Supreme Court of Puerto Rico denied bail in May 1971. In December 1971 petitioners again applied to the Superior Court. In their motion they stated that, although ordered by the court, the transcript of their trial had not been prepared, and that such lengthy incarceration without bail and an opportunity to press their appeal was a denial of due process.
In May 1972, their motion not having been acted upon, petitioners sought ha-beas corpus in the United States District Court. Alleging that they were good bail risks, being lifelong residents of Puerto Rico with no prior criminal record, that there had been no articulated findings and determination that their appeals were frivolous, and that the court stenographers had yet to commence the preparation of their transcript, petitioners claimed a denial of due process. Not wishing to exercise jurisdiction before petitioners had fully exhausted their local rights, the district court ordered them to make a further application to the Supreme Court of Puerto Rico. Petitioners did this, calling the court’s attention to the fact that it was now over two years and the stenographers had yet to commence the transcript. The court denied bail, without a hearing, with the conclusory statement that the appeal was frivolous and that it would be dangerous to the community to allow petitioners to be at large. It did, however, order preferential treatment for the preparation of their transcript.
After this decision, petitioners renewed their claims in the district court and the court entered an order that they be released on bail upon a setting of the amount needed. In support of its order the court cited the decision in United States ex rel. Keating v. Bensinger, D.C. Ill.1971, 322 F.Supp. 784, to the effect that it is a violation of a defendant’s Eighth Amendment rights to refuse bail arbitrarily, and that arbitrariness is to be presumed when no supporting reasons were furnished. The Commonwealth sought a stay of this order in this court, and we granted such with a request for a further report of facts from the district court.
This report has now been received. It shows the following. It is the practice in the Puerto Rico Superior Court to have transcripts prepared in chronological order. At the time petitioners’ transcript was requested there were sixteen cases ahead, some of which still remain. We infer that the practice is for the stenographers to prepare transcripts only-in such time as is available after their regular courtroom duties. Even with the order of preference, the court found, it is not expected that petitioners’ transcript will be completed until May 1973. Briefs must then be written. Even if the Court were to expedite the hearing it would seem unreasonable (this is our estimate, not the district court’s; it made none) to expect a decision before September 1973, at which time petitioners will have been in jail for three years.
This court on a number of occasions has taken the position that since the right to bail pending appeal is not absolute, a request by a defendant for release on bail implies an undertaking to prosecute the appeal expeditiously. Upon a fair showing of lack of diligence we have revoked bail regardless of the merits of the appeal. This rule should work both ways. If an appellate court directly, or through the agency of the trial court, refuses bail to an appellant, there should be an implicit obligation on the part of those in authority to permit, and where necessary to assist, in the prompt prosecution and disposition of the appeal. Thus in Odsen v. Moore, 1 Cir., 1971, 445 F.2d 806, where a state prisoner, over a period of months, wrote to the clerk of court inquiring as to the state of his appeal, protesting that nothing was being done by court-appointed counsel, and was “consistently informed by the clerk that all complaints of inaction must be directed to counsel of record”, we said that this was equivalent to holding a case “under advisement for an unconscionable period, as in Dixon v. Florida, 388 F.2d 424 (5th Cir. 1968) and Morgan v. State of Tennessee, 298 F.Supp. 581 (E.D.Tenn.1969)”, and deprived defendant of due process. 445 F.2d at 807.
The district court, picking up the language of “consistently complaining,” felt that the Commonwealth had not been derelict because, petitioners had not made a request for preference. It rested its decision to grant bail upon the Puerto Rico courts’ failure to live up to the requirements of the Bensinger case. At least one member of this court has doubts as to the correctness of Bensin-ger, but none of us has doubts about the correctness of the court’s order. We do not attach the significance it did to counsel’s failure to request preference. It must be self-evident that a defendant who appeals and who seeks bail pending appeal does not wish to stay in jail, and at the least desires his transcript as quickly as possible. The Puerto Rico courts cannot but be aware of their practice with respect to transcripts, and the general consequences thereof. Moreover, as above appears, the consequences to these particular petitioners were fully brought to their attention.
It is true that the Supreme Court of Puerto Rico has found — although in what manner does not appear —that petitioners’ appeals are frivolous. It is also true that the crimes of which petitioners have been found guilty are manifestly reprehensible, and a danger to the community. The finding of guilt, however, so far is only provisional. Petitioners, having appealed, are entitled to have that finding reviewed and their guilt finally passed upon by the full process of law. We, too, do not enjoy the thought of guilty defendants filing frivolous appeals, if that be the ease. But two years of total inaction, however occasioned, while they remain incarcerated seems more than enough. Nor is it to be overcome by a present exercise of diligence and treated as if it had not occurred. Any such rule would mean that a defendant may be freely given improper consideration until the system, or the parties at fault, are caught out. We see no reason to stay further the order of the district court, and we do not. The district court should determine the appropriate amount of bail to assure petitioners’ presence. At this stage the Commonwealth is entitled to no more.
The stenographer — there were three in all —who did the bulk of the reporting is no longer in tlie employ of the Commonwealth and has left Puerto Rieo, making a special problem. It is not, however, the only problem.
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:
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songer_genresp1
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
COMMUNIST PARTY OF ILLINOIS et al., Plaintiffs-Appellees, v. STATE BOARD OF ELECTIONS FOR the STATE OF ILLINOIS et al., Defendants-Appellants.
No. 74-1950.
United States Court of Appeals, Seventh Circuit.
Argued April 23, 1975.
Decided June 27, 1975.
Certiorari Denied Nov. 17, 1975.
See 96 S.Ct. 394.
William J. Scott, Atty. Gen., Herbert L. Caplan, Asst. Atty. Gen., Chicago, 111., for defendants-appellants.
Howard Eglit, Chicago, 111., for plaintiffs-appellees.
Before SWYGERT and TONE, Circuit Judges, and GRANT, Senior District Judge.
Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.
SWYGERT, Circuit Judge.
Plaintiffs, the Communist Party of Illinois, several of its candidates for state office in the November 5, 1974 general election, and a registered voter desiring to vote for these candidates, filed suit for declaratory and injunctive relief against the State Board of Election Commissioners for the State of Illinois seeking to challenge the constitutionality of a section of the Illinois Election Code, Ill.Rev.Stat. ch. 46, § 10-2. This statute requires any political party seeking statewide ballot recognition to submit petitions containing not less than 25,000 signatures of qualified voters, not more than 13,000 of which may be counted from any one county. Plaintiffs sought an order declaring the requirement limiting the number of signatories from any one county void as being unconstitutional, and injunctive relief requiring the defendants to certify plaintiff candidates so that they would be listed on the statewide ballot for the November, 1974 general election.
Initially, the district court entered an order declaring section 10-2 unconstitutional and denying defendants’ motion to convene a three-judge court pursuant to 28 U.S.C. § 2281. The court found section 10-2 violative of the Equal Protection and Due Process clauses of the Fourteenth Amendment in that it “discriminates against voters of the most populous county of the state in favor of voters in the less populous counties.” The court found the claim that the section is not unconstitutional to be “wholly without merit in light of a prior decision by a three-judge panel of this court declaring this same statutory provision unconstitutional in Communist Party v. Ogilvie, [357 F.Supp. 105 (N.D.Ill.1972)], and other decisions declaring similar signature distribution requirements unconstitutional.” In response to this order, plaintiffs moved for injunctive relief. In a second order, the district court entered a preliminary injunction directing defendants to certify or cause to be certified plaintiff candidates for the November, 1974 election “if the only grounds for non-certification is failure to comply with the county distribution signature requirement.”
Defendants appeal from both of these orders. They contend that the issue of the constitutionality of section 10-2 has not been rendered “wholly without merit” by previous decisions, and that the district judge was therefore required by 28 U.S.C. § 2281 to convene a three-judge court in order to enjoin the enforcement of this state statute. They further contend that section 10-2 represents a non-arbitrary attempt by the State of Illinois to assure that residents throughout Illinois have “equal opportunity to be involved in statewide political party activities,” and to assure that “multifarious political associations with little or no popular support do not bemuse the electoral process.” They say section 10-2 does not, therefore, offend the Fourteenth Amendment.
I
In our view, the issue of whether the district court in this case should have convened a three-judge court prior to issuing the preliminary injunctive order directing the Board not to enforce section 10-2 against these plaintiffs in the November, 1974 general election is moot. That election is over; plaintiffs and defendants here have little stake in litigating the technical question of whether the relief obtained in connection with that election had a proper jurisdictional base. Plaintiff candidates were in fact certified and Usted on the November ballot. The past cannot be retraced. A decision on the section 2281 question would be purely advisory at this point and would not affect the rights of these litigants insofar as the injunctive order is concerned. See Oil Workers Unions v. Missouri, 361 U.S. 363, 366-68, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960); North Carolina v. Rice, 404 U.S. 244, 245-46, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).
II
The heart of this case is the district court’s order declaring section 10-2 unconstitutional. This determination was based on the reasoning contained in a previous decision of a three-judge district court in this circuit declaring section 10-2 unconstitutional as violative of the equal protection provision of the Fourteenth Amendment, Communist Party v. Ogilvie, supra, and on the rationale of the Supreme Court’s decision in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) holding a predecessor of section 10 — 2 unconstitutional on the same ground. We believe this determination was correct.
In Moore the Supreme Court had before it a statutory provision requiring certain independent candidates, in order to be certified for the statewide ballot in Illinois, to obtain the signatures of 25,-000 qualified voters, including signatures of two hundred voters from each of at least fifty of the one hundred and two Illinois counties. This provision had been specifically upheld in a previous decisión of the Supreme Court in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 (1948). Expressly overruling MacDougall as being “out of line with our recent apportionment cases,” the Court in Moore framed the equal protection problem in these terms:
It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. This law applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights. The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.
Under this Illinois law the electorate in 49 of the counties which contain 93.4% of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,-000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office. This law thus discriminates against the residents of the populous counties of the State in favor of rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment. 394 U.S. at 818— 19, 89 S.Ct. at 1495-1496.
Section 10-2 suffers the same constitutional defect. To paraphrase the Supreme Court in Moore: Under section 10-2 the entire electorate of Cook County, which represents 45% of all registered voters in Illinois, may not form a new political party and place its candidates on the ballot. Yet any 25,000 of the remaining 55% of registered voters properly distributed among the remaining 101 counties may form a new party to elect candidates to office. Put another way, the approximately 2,750,000 registered Illinois voters in urbanized Cook County do not have the power under section 10-2 to create a statewide political party to protect their own peculiar interests, while 25,000 voters in any two or more counties in rural downstate Illinois may create such a party to protect their distinctly different, and often competing interests. This two-county requirement, like the fifty county requirement in Moore, “discriminates against the residents of the populous counties of the state in favor of rural sections.”
Given the fact that section 10-2 directly affects the fundamental right of a class of persons to “vote effectively” Williams v. Rhodes, 393 U.S. 23, 30-34, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the statute cannot stand unless it is necessary to advance a compelling state interest. Id. at 31, 89 S.Ct. 5. If other means exist which will adequately protect the state interest involved, but which will be less intrusive on the right to vote or less discriminatory in effect, such other means must be employed and section 10-2 must be struck down. See Dunn v. Blumstein, 405 U.S. 330, 334-43, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).
In their brief, defendants contend that the county distribution requirement is necessary to prevent numerous parties with negligible popular support from overcrowding the ballot and thereby confusing and demeaning the statewide electoral process. In order to achieve this goal, defendants urge, with considerable candor, that the strength of the concentrated “Chicago” (Cook County) vote must be diluted:
Politics is access to voters. The solicitation of nominating signatures and distribution of campaign literature are facilitated where the population is concentrated. A single high-rise apartment building in Chicago may contain more people than a county town, and several city blocks may contain more people than entire “downstate” counties. A Chicago precinct captain can personally contact more voters in an hour than his downstate counterpart may be able to reach in days of effort.
Thus, a Chicago based, would-be new political party approaches any statewide election with an advantage that simply does not exist elsewhere in the State, and petition efforts, otherwise equal, produce greater results in “Chicago.”
Consequently, minority parties from “Chicago” ab initio enjoy greater access to the ballot, and it is the vote effectiveness of downstate voters which is diluted by the demographic realities. Without some regulation, Chicago fringe candidates would easily flood the ballot.
Balancing this inequality is the object of the signature distribution requirements of § 10-2. Appellants’ brief at 10.
Assuming that a compelling need exists in Illinois to “protect the integrity of its political processes from frivolous or fraudulent candidacies” Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972), we cannot see how • this interest is tied by necessity to a discriminatory diminution of the power of the individual voter in Cook County, or any other urbanized county. Similarly, if there is a permissible and compelling state interest in limiting the total number of candidates or parties on the statewide ballot independent of the question of the seriousness or legitimacy of such candidates or parties, some method is surely available which will serve this interest without making the effectiveness of an Illinois citizen’s electoral power depend on his geographical loca- . tion within that state.
We do not, of course, suggest what means Illinois may employ to serve its interest in maintaining the integrity of its electoral process. We hold only that the county distribution requirement of section 10-2 of the Illinois Election Code, like its predecessor, “lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.” Moore v. Ogilvie, 394 U.S. at 819, 89 S.Ct. at 1496. The order of the district court declaring section 10-2 unconstitutional is therefore affirmed.
. Members of the Board are also sued, both individually and in their capacities as members of the State Board of Elections.
. The statute provides in relevant part:
Any group of persons hereafter desiring to form a new political party throughout the State, or in any political subdivision greater than a county and less than the State, shall file with the State Board of Elections a petition as hereinafter provided . . . Any such petition for the formation of a new political party throughout the State . . shall declare as concisely as may be the intention of the signers thereof to form such new political party in the State, or in such district or political subdivision; shall state in not more than 5 words the name of such new political party; shall contain a complete list of candidates of such party for all offices to be filled in the State, or such district or political subdivision as the case may be, at the next ensuing election then to be held; and, if such new political party shall be formed for the entire State, shall be signed by not less than 25,000 qualified voters: Provided, that no more than 13,000 signatures from the same county may be counted toward the required total of 25,000 signatures.
. Title 28 U.S.C. § 2281 provides:
An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.
. Citing Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Socialist Workers Party v. Hare, 304 F.Supp. 534 (E.D.Mich.1969); Baird v. Davoren, 346 F.Supp. 515 (D.Mass.1972); Socialist Labor Party v. Rhodes, 318 F.Supp. 1262 (S.D.Ohio 1970); Socialist Workers Party v. Rockefeller, 314 F.Supp. 984 (S.D.N.Y.1970).
. The original declaratory order purports to grant plaintiffs’ “motion for a preliminary injunction.” It does no more than declare section 10-2 unconstitutional, however, and does not direct any state officers to take any specific action or to refrain from taking action. This initial order is dated September 11, 1974 as is the minute order which accompanies it. The second, or preliminary injunction order, is also dated September 11, 1974, but is accompanied by and attached to a notice of motion and motion which are file stamped September 12, 1974. The minute order accompanying these papers is dated September 12, 1974 as well. Thus, the injunctive order appears to have been prepared by plaintiffs and signed (after limiting alterations) by the district judge subsequent to the entry of the declaratory order and in reliance upon that original order.
The order granting injunctive relief reads:
PRELIMINARY INJUNCTION
Having declared the county distribution signature requirement of Section 10-2 of Illinois Revised Statutes, Ch. 46, Sec. 10-2 (1973) unconstitutional as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States by order of this Court, dated September 11, 1974, it is hereby ordered that defendants, their agents, and employees certify to the county clerk of each county in Illinois the plaintiff candidates as duly nominated candidates for election to state office in the general election to be held on November 5, 1974, if the only grounds for noncertification is failure to comply with the county distribution signature requirement.
WIT,I JAM J. LYNCH,
Judge, United States District Court
Dated: September 11, 1974.
. The notice of appeal refers to “the order entered by District Court Judge William J. Lynch on September 11, 1974 declaring the county signature requirement of § 10-2 of the Illinois Election Code unconstitutional and granting a preliminary injunction,” apparently treating the two orders as a single, consolidated order.
. Section 2281 does not apply to the declaratory order alone either by its terms or as construed. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153-55, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Sands v. Wainwright, 491 F.2d 417, 422 (5th Cir. 1973). And while defendants-appellants argue the applicability of this statute to the injunctive order, they urge at the same time that we may proceed directly to the merits of this case even if we should hold that the case should originally have been heard by three judges. In effect, they ask for an opinion without a remedy. Curiously, it is the plaintiffs-appellees who contend that a reversal on the three-judge court issue would require remand for convening of such a court. The problem with this contention is that at the present time no injunctive relief is sought by plaintiffs. The only viable issue at this stage is the question of the constitutionality of section 10-2 and this issue would not require a three-judge court, absent a request for injunction. A remand under these circumstances would indeed be pointless. The section 2281 question is therefore not “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937).
. In their brief appellants urge us to consider the “realities of Illinois politics.” They point out that
[t]he State is organized into 102 counties. Of these, Cook County, i. e. “Chicago”, is uniquely the most urbanized county, and contains approximately 50% of the total State population. The land area of the remaining 101 counties, typically referred to as “Downstate” is primarily agricultural, and contains the remaining 50% of the population. Appellants’ brief at 5.
We recognize these “realities,” but we do not see how they can help appellants in this case. Rather, they point out further the problem inherent in the two-county requirement: While the agricultural interest groups may create a special interest party entirely among their own constituents, the Cook County urban interest groups cannot, but must gamer some forty-eight percent of their petition signatures from relatively rural Illinois counties.
. “[T]he voters can assert their preferences only through candidates or parties or both.” Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974).
. See Generally Lubin v. Panish, 415 U.S. 709, 715-19, 94 S.Ct. 1315, 1321, 39 L.Ed.2d 702 (1974) suggesting that the constitutionally permissible interest of the state in avoiding “laundry list” ballots is limited to the interest in screening out frivolous, non-serious parties or candidates, or those without “some reasonable quantum of voter support.” See also American Party of Texas v. White, 415 U.S. 767, 781-82, 94 S.Ct. 1296, 1307, 39 L.Ed.2d 744 (1974): “Of course, what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot.”
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Marcus Wayne CHENAULT, Petitioner-Appellant, v. Leroy N. STYNCHCOMBE, Sheriff of Fulton County, Respondent-Appellee.
No. 77-2501.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1978.
Randy Bacote, Atlanta, Ga., for petitioner-appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, Allen Moye, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
Before WISDOM, TJOFLAT and VANCE, Circuit Judges.
WISDOM, Circuit Judge:
Marcus Wayne Chenault appeals a district court order denying certain portions of his habeas corpus petition. We remand to the district court with instructions to dismiss the petition without prejudice so that Chenault may exhaust state remedies.
I.
On Sunday morning, June 30, 1974, Che-nault attended services at Ebenezer Baptist Church in Atlanta,' Georgia. During the service, Chenault shot Mrs. Martin Luther King, Sr., Deacon Edward Boykin, and Mrs. Jimmie Mitchell. Mrs. King and Mr. Boy-kin died from their wounds. On July 9, 1974, a Fulton County grand jury indicted the petitioner on two counts of murder and one count each of aggravated assault, of carrying a pistol without a license, and of carrying a concealed weapon. On September 12, 1974, a jury found the petitioner guilty of all charges. The jury imposed sentences of death on both counts of murder and a sentence of ten-years imprisonment on the aggravated assault count, which was to run consecutively with the death sentences. In addition, the trial judge imposed a one-year concurrent sentence on the count of carrying a pistol without a license and the count of carrying a concealed weapon. Chenault appealed, asserting sixteen errors. The Supreme Court of Georgia affirmed both his conviction and sentence. Chenault v. State, 1975, 234 Ga. 216, 215 S.E.2d 223. Chenault then instituted this federal habeas corpus proceeding, in which he presented the same errors he had asserted on his direct appeal.
The district court denied relief on fourteen alleged errors, and this Court affirmed. Chenault v. Stynchcombe, 5 Cir. 1977, 546 F.2d 1191, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158. The district court stayed consideration of enumerations of error fifteen and sixteen, which attacked the constitutionality of the Georgia death penalty statute and the imposition of the death sentence, pending determination by the Supreme Court on the constitutionality of the death penalty. On May 26,1977, after the Supreme Court decisions in the 1976 death penalty cases, the district court denied relief on enumerations of error fifteen and sixteen.
The petitioner contends that the district court erred in denying relief on enumerations of error fifteen and sixteen. In addition, during oral argument before this Court the petitioner made two new allegations of error. These contentions will be considered in turn.
II.
The district court properly denied relief on enumerations of error fifteen and sixteen. Enumeration of error fifteen contended that the Georgia death penalty statutes violate the constitutional prohibition against cruel and unusual punishment. In Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Supreme Court upheld the constitutionality of these Georgia statutes. Enumeration of error sixteen asserted that the petitioner’s death sentence had been imposed in violation of Ga.Code Ann. § 27-2503, because the prosecutor introduced no evidence on aggravation of punishment at the sentencing stage of the trial, choosing instead to rely only upon evidence heard on the issue of guilt. Whether this statute requires the prosecutor to present additional evidence at the sentencing stage is a question of state law, which is not cognizable in a federal habeas proceeding. Enumeration of error sixteen suggests no colorable federal constitutional claim.
III.
During oral argument before this Court, the petitioner asserted that the trial judge’s instructions to the jury during the sentencing stage of the trial about mitigating circumstances and the option to recommend mercy were constitutionally inadequate. The petitioner did not raise this issue in his appeal to the Supreme Court of Georgia or in his habeas petition in the district court. Furthermore, he has never attempted to raise it by filing a state habeas corpus proceeding under Georgia law. If the state habeas proceeding is available to him, the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. Because it appears that the petitioner can avail himself of the state habeas procedure, this Court determines that the issue of the adequacy of sentencing instructions is not properly before us.
The Georgia courts appear willing to entertain habeas corpus proceedings challenging the imposition of the death penalty on federal constitutional grounds. See, e. g., Ross v. Hopper, 1977, 240 Ga. 369, 240 S.E.2d 850; Wilkes, Postconviction Habeas Corpus Relief in Georgia : A Decade After the Habeas Corpus Act, 12 Ga.L.Rev. 249, 258-59 (1978). Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part) is the habeas provision applicable to persons, like the petitioner, imprisoned by virtue of a sentence imposed by a Georgia court. The statute allows the imprisoned person to assert that he has suffered a “substantial denial” of rights conferred by the United States Constitution. Ga.Code Ann. § 50-127(1). Except when the composition of a grand or traverse jury is challenged, federal constitutional rights are not deemed to have been waived unless it is shown that the habeas petitioner “voluntarily, knowingly, and intelligently” participated in the “intentional relinquishment or abandonment of a known right or privilege”. Id. Under this standard, it appears that the petitioner’s failure to object to the sentencing instructions at trial did not operate as a waiver. Therefore, he may pursue the state habeas remedy if his objection implicates a “substantial denial” of a federal constitutional right.
In view of the two most recent Supreme Court death penalty decisions — Lockett v. Ohio, 1978,- U.S.--, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Bell v. Ohio, 1978, - U.S. -, 98 S.Ct. 2977, 57 L.Ed.2d 1010 — we conclude that the petitioner’s objection does implicate a substantial denial of a federal constitutional right. In Lock-ett the plurality opinion of the Chief Justice, in which Justices Stewart, Powell, and Stevens joined, states that the Eighth and Fourteenth Amendments require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”. - U.S. at --, 98 S.Ct. at 2965. See Bell,-U.S. at--, 98 S.Ct. 2977 (applying Lockett). The plurality would apply this requirement in all cases except perhaps where a mandatory death sentence is needed to deter certain kinds of homicide. See Lockett, - U.S. at--& n.ll, 98 S.Ct. 2954. Justice Marshall, although still adhering to his view that capital punishment is always unconstitutional, appears to have suggested that the sentencer must be allowed to consider “the unique individuality of every criminal defendant”. Lockett, - U.S. at -, 98 S.Ct. at 2973 (Marshall, J., concurring in the judgment). Justice Brennan did not participate in either decision. He has, however, consistently maintained that the death penalty is always unconstitutional. See, e. g., Coker v. Georgia, 1977, 433 U.S. 584, 600, 97 S.Ct. 2861, 53 L.Ed.2d 982 (Brennan, J., concurring in the judgment).
It now seems, therefore, that a death sentence imposed by a sentencer barred from considering mitigating circumstances will be vacated by a six-member majority of the Supreme Court — the plurality in Lockett and Bell and Justices Brennan and Marshall. This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell, then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against ■ death. Thus, the petitioner’s contention that the sentencing instructions given by the trial judge were not adequate on this point does implicate a substantial denial of a federal constitutional right. Should he file a state habeas petition raising this contention, the state courts would be required, in light of Lockett and Bell, to determine whether the instructions given adequately comport with the United States Constitution.
IV.
Georgia law provides that, in a capital case, a prospective juror who is opposed to the imposition of the death penalty under any circumstances is automatically removed by the trial judge “for cause”. Ga.Code Ann. §§ 59-806(4), 59-807. See Eberheart v. State, 1974, 232 Ga. 247, 250-51, 206 S.E.2d 12, 15-16, vacated on other grounds, 1977, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104, modified, 239 Ga. 407, 238 S.E.2d 1. During oral argument before this Court, the petitioner contended that this use of a so-called “death-qualified jury” violated the Georgia Constitution’s guarantee to a “trial by an impartial jury”. Ga.Code Ann. § 2-105 (Const.1945). That is clearly an issue of state law, which is not cognizable in a federal habeas corpus proceeding.
The petitioner can obtain no relief even if his contention were recast as an argument that the death-qualified jury provision violates his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution. First, this issue is not properly before this Court, because the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. He did not present the issue on his appeal to the Supreme Court of Georgia, and he has not raised it by filing a state habeas proceeding under Ga.Code Ann. § 50-127. Second, in the recent case of Spinkellink v. Wainwright, 5 Cir. 1978, 578 F.2d 582, a panel of this Court held that a death-qualified jury procedure does not violate the constitutional right to a jury trial. Thus, this Court would be required to reject the petitioner’s argument if we had jurisdiction over this issue.
V.
In summary, we affirm the decision of the district court that the petitioner’s enumerations of error fifteen and sixteen are without merit. We find that his challenges to the sentencing instructions and to the death-qualified jury are not properly before this Court because he has failed to exhaust state remedies. We remand the case to the district court with instructions to dismiss the petition without prejudice so that the petitioner may pursue state remedies for these contentions.
AFFIRMED and REMANDED.
. Georgia allows a person incarcerated under a sentence imposed by a State court to institute a habeas corpus proceeding. See Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part). The petitioner has never attempted to obtain the writ of habeas corpus for the Georgia courts. In the district court, the respondent argued that the federal habeas corpus petition must be dismissed because the petitioner had failed to exhaust state remedies, as required under 28 U.S.C. § 2254. The district court determined that the petitioner had met the exhaustion requirement because on appeal the Supreme Court of Georgia had ruled upon every enumeration of error contained in the federal petition. The respondent has not renewed this exhaustion argument in this Court.
. Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 1976, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 1976, 428 U.S. 262, 96 S.Ct.. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina, 1976, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana, 1976, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.
. In the petitioner’s direct appeal, the Supreme Court of Georgia held that the prosecutor was not required to present additional evidence at the sentencing stage of the trial. Chenault v. State, 234 Ga. at 224-25, 215 S.E.2d at 229.
. There are many cases that state that a state prisoner may not pursue federal habeas corpus unless he has raised his issues in a state habeas proceeding. Recent Fifth Circuit cases to this effect are: Mosley v. Smith, 5 Cir. 1973, 470 F.2d 1320, cert. denied, 1973, 412 U.S. 932, 93 S.Ct. 2757, 37 L.Ed.2d 160; Brookins v. Florida, 5 Cir. 1972, 461 F.2d 663; Pebworth v. Henderson, 5 Cir. 1970, 428 F.2d 789; Wheeler v. Beto, 5 Cir. 1969, 407 F.2d 816.
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
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Connie Nell LEWIS and Juanita Gibson Lewis, Appellants, v. UNITED STATES of America, Appellee.
No. 14939.
United States Court of Appeals Fifth Circuit.
Nov. 23, 1954.
John P. Koons, Dallas, Tex., for appellants.
John C. Ford, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
HUTCHESON, Chief Judge.
Filed on May 22,1953, by Juanita Gibson Lewis, the widow and principal beneficiary of Harvey C. Lewis, who died on June 11, 1945, on behalf of herself and as next friend for their minor child, Connie Nell Lewis, his contingent beneficiary, the suit was brought to recover total disability benefits provided for in National Life Insurance Company policy No. N-15-931-199 issued to deceased on March 24, 1944.
The claim, a double barrelled one, was: that at the time of assured’s death on June 11, 1945, he was, and had been since February 23, 1945, when the policy was in force by payment of premiums, totally and permanently disabled, and the policy was therefore in full force and effect; that on July 8, 1945, Juanita Lewis, as widow and principal beneficiary, inquired of the Veterans Administration regarding the insurance policy and thereby in effect made a claim at once for the proceeds of the policy and for waiver of premiums under Sec. 802 (r) of the National Service Life Insurance Act of 1940, as amended; that in response to her inquiry she was advised that the policy had lapsed when in truth and in fact by virtue of Section 802(r) above, the insurance was in full force and effect; that in 1950, she requested a reopening of the claim, and on August 13, 1951, she filed on behalf of the minor, the contingent beneficiary, a claim under the policy for total disability and the claim was on September 9, 1952, denied; that the interest of said minor beneficiary accrued on the date of the death of the insured, and if it be held that she, as principal beneficiary was culpably negligent in not prosecuting her claim and that it is barred, the claim and right of the minor contingent plaintiff, because of her continuing minority, persists as valid and undefeated by laches, limitation or other bar.
The defenses were: failure of the complaint to state a recoverable claim; a denial that the mere inquiry about the policy made by the principal beneficiary in 1945 was or could have been a claim for waiver of premiums or for the proceeds of the policy and if it was the latter, the reply by the Veterans Administration on February 28, 1946, was a denial of such claim; an admission that a claim was filed in 1951 on behalf of the minor contingent beneficiary; and an allegation that the principal beneficiary being still in life, the contingent beneficiary had and has no interest entitling her to make a claim or sue upon it.
The issues thus joined and the facts stipulated, plaintiffs urged upon the district judge: that Sec. 802(r), supra, was self operating; that the admitted facts established compliance therewith and protected the rights of both principal and contingent beneficiary and that the minority of the contingent beneficiary protected and preserved her right to sue.
The defendant, on the other hand, insisted: that Sections 802(r), supra, and 802(n), Title 38 U.S.C.A., requiring an application for waiver of premiums, must be considered together and as requiring in this case a timely application by the principal beneficiary for waiver of premiums; that, so considered, the evidence furnishes no basis for the judgment sought; and that the principal beneficiary’s failure to present a claim for waiver of premiums within one year after insured’s death and her failure to bring an action within the six years limited by 38 U.S.C.A. § 445, has completely barred the right to sue.
The district judge, agreeing with the defendant, gave judgment accordingly. Appealing from this judgment on an agreed statement of facts, plaintiffs are here insisting that in so doing the district judge erred.
We do not think SQ_ 0n the contrary> we are of the clear opinion that upon the facts agreed to and under the authority of the controlling cases, the record wholly fails to support appellants’ contention that under the provisions of Sec. 802 (r) the policy was automatically kept in force. We are, therefore, of the further opinion that the failure of the principal beneficiary to apply for waiver of premiums and her failure to make a timely claim and to bring suit within the time limited in 38 U.S.C.A. § 445, prevents the bringing and maintenance of this suit.
The judgment is affirmed.
. 38 U.S.C.A. § 802(r): “In any case in which premiums are not waived under subsection (n) of this section solely because the insured died prior to the continuance of total disability for six months, and proof of such facts, satisfactory to the Administrator of Veterans’ Affairs, is filed by the beneficiary with the Veterans’ Administration within one year after September 30, 1944, or one year after the insured’s death, whichever is the later date, his insurance shall be deemed to be in force at the date of his death, and the unpaid premiums shall become a lien against the proceeds of his insurance: Provided, That if the beneficiary be insane or a minor, proof of such facts may be filed within one year after removal of such legal disability.”
. “ * * * no suit on United States Government life (converted) insurance shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That for the purposes of this section it shall be deemed that the right accrued on the happening of the contingency on which the claim is founded: Provided further, That this limitation is suspended for the period elapsing between the filing in the Veterans’ Administration of the claim sued upon and the denial of said claim by the Administrator of Veterans’ Affairs. Infants, insane persons, or persons under other legal disability, or persons rated as incompetent or insane by the Veterans’ Administration shall have three years in which to bring suit after the removal of their disabilities. * * * ”
. 1. The United States of America issued National Service Life Insurance Policy, Policy No. N-15-931-199 in the amount of $10,000.00 to Harvey O. Lewis, husband of Juanita Gibson Lewis and father of Connie Nell Lewis.
2. Said policy was issued on the 24th day of March, 1944.
3. Said policy was payable in event of the insured’s death to Mrs. Juanita Gibson Lewis.
4. Connie Nell Lewis was the contingent beneficiary named under said policy.
5. The insured died on June 11, 1945, as a result of a self-inflicted gun shot wound.
6. The premiums on the policy were paid through January 23, 1945.
7. The insured was totally disabled from February 23, 1945 to June 11, 1945, and such total disability was a service connected one and was so ascertained by the defendant’s pension board on August 2, 1951.
8. A National Service Life Insurance Policy does not lapse for non-payment of premiums due until after the expiration of thirty-one days from the date the premium was due.
9. The insured was discharged from active military service Dec. 7, 1944, on account of dependency; the discharge papers reflect no indication of the existence of any disability.
10. At no time during the insured’s lifetime did he file a claim for waiver of premiums.
11. The Veterans’ Administration received inquiry from Juanita Lewis Gibson, plaintiff-appellant dated July 8, 1945, regarding National Service Life Insurance Policy No. N-15-931-199 a copy of which letter is attached hereto and entitled “Exhibit A”, and in response to said letter the Veterans’ Administration advised the said plaintiff-appellant that the said premiums on said policy were paid through January 23, 1945, but that the insurance lapsed for non-payment of premiums thereafter.
12. Connie Nell Lewis, plaintiff-appellant was born May 16, 1934.
13. On August 5,1945, the said Juanita Gibson Lewis filed a claim for a death pension, which was denied May 21, 1946, and the answer to a specific question on the form submitted by her at that time contained a statement that she was not filing and had not filed a claim for government insurance.
14. Juanita Gibson Lewis filed claim for burial allowance which was subsequently denied on August 13, 1947.
15. On August 13,1951, the said Juanita Gibson Lewis, for and on behalf of the minor contingent beneficiary, Connie Nell Lewis, filed a claim for total disability and benefits under the National Service Life Insurance Act on Veterans' Administration form 9-357c, Policy No. N-15-931-199.
16. Administrator’s decision, Veterans’ Administration No. 916, dated Sept. 29, 1952, denied the claim for insurance filed on Form 9-357c dated Aug. 13, 1951, by Juanita Gibson Lewis for and on behalf of Connie Nell Lewis, then a minor.
17. Juanita Lewis was under the age of 35 years at the time of the death of the insured.
. Cain v. United States, D.C., 116 F.Supp. 150; Fox v. United States, 5 Cir., 201 F.2d 883; Scott v. United States, 5 Cir., 189 F.2d 863, certiorari denied 342 U.S. 878, 72 S.Ct. 169, 96 L.Ed. 660; Stephens v. United States, D.C., 85 F. Supp. 620; United States v. Cooper, 200 F.2d 954; United States v. Roberts, 5 Cir., 192 F.2d 893.
. Cf. U. S. v. Barker, 5 Cir., 70 F.2d 1002; McDonald v. Hovey, 110 U.S. 619, 4 S.Ct. 142, 28 L.Ed. 269; De Arnaud v. United States, 151 U.S. 483, 14 S. Ct. 374, 38 L.Ed. 244; Winslow v. United States, 79 U.S.App.D.C. 366, 147 F.2d 157; Dowell v. United States, 5 Cir., 86 F.2d 120.
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_appel1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).
Stephen STACKHOUSE, Appellant, v. Joseph MAZURKIEWICZ, Warden; Sgt. Knepp, C.O. II; William Quick, C.O. I; D.A. Leathers, C.O. III; A. Anderson, C.O. I; Jesse Rush, IV, C.O. II; Tim Yutzy, C.O. Work Boss; Kunes C.O. Work Boss; Carrie Fromm, Institutional Psychologist; Rodriguez, C.O. I.
No. 91-5239.
United States Court of Appeals, Third Circuit.
Submitted under Third Circuit Rule 12(6) Sept. 13, 1991.
Decided Dec. 11, 1991.
Rehearing Denied Jan. 9, 1992.
Stephen Stackhouse, pro se.
Ernest D. Preate, Jr., Atty. Gen., Linda C. Barrett, Deputy Atty. Gen., Calvin R. Koons, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Harrisburg, Pa., for appellees.
Before SLOVITER, Chief Judge, and GREENBERG and COWEN, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Appellant Stephen Stackhouse, a former Pennsylvania state prisoner at the State Correctional Institution at Rockview, brought a civil rights action in the district court against various prison officials. His complaint raised numerous claims which we need not describe in detail. We simply point out that in general they assert that he was denied due process of law in disciplinary proceedings and that he was subjected to cruel and unusual punishment. The defendants filed motions for summary judgment and for dismissal to which Stack-house did not respond as required by Middle District Rule 401.6. Consequently, the magistrate judge filed a report and recommendation that the motion to dismiss be granted and the district court by order of February 13, 1991, adopted the report and recommendation and dismissed the action. Neither the magistrate judge nor the court addressed the merits of the complaint. Stackhouse appeals.
While we are not unmindful of the problems of the district court in dealing with a large volume of litigation, we nevertheless conclude that under Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168 (3d Cir.1990), this action should not have been dismissed solely on the basis of the local rule without any analysis of whether the complaint failed to state a claim upon which relief can be granted, as provided in Fed.R.Civ.P. 12(b)(6). Local Rule 401.6 should be understood to facilitate the court’s disposition of motions rather than to impose a sanction for failure to prosecute or defend. Anchorage Associates, 922 F.2d at 174. In a similar situation involving a local rule in Anchorage Associates, we held that a district court should not have granted summary judgment solely on the basis that a motion for summary judgment was not opposed.
While we acknowledge that Fed.R.Civ.P. 12(b)(6) has no analog to the provision in Fed.R.Civ.P. 56(e), that if the adverse party does not respond to a motion for summary judgment the motion may be granted “if appropriate,” we do not think that this distinguishes the rules for present purposes. The fact is that if a motion to dismiss is granted solely because it has not been opposed, the case is simply not being dismissed because the complaint has failed to state a claim upon which relief may be granted. Rather, it is dismissed as a sanction for failure to comply with the local court rule.
In reaching our result, we do not suggest that the district court may never rely on the local rule to treat a motion to dismiss as unopposed and subject to a dismissal without a merits analysis. There may be some cases where the failure of a party to oppose a motion will indicate that the motion is in fact not opposed, particularly if the party is represented by an attorney and in that situation the rule may be appropriately invoked. Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad.
We realize, of course, that we could make our own analysis of the complaint and, if we found that it failed to state a claim upon which relief could be granted, we could affirm on that basis. In fact we have done that and, while we are reluctant to comment on the merits of the case in its current posture, have concluded that it is possible that some aspects of the complaint might survive a motion to dismiss if addressed on the merits. In these circumstances, we conclude that the complaint should in the first instance be considered substantively by the district court.
The order of February 13, 1991, will be reversed and the matter will be remanded to the district court for further proceedings consistent with this opinion. The parties will bear their own costs on this appeal.
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_appel1_3_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant-Appellee.
No. 84-2405.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 6, 1984.
Decided Sept. 26, 1984.
Rehearing Denied Nov. 30,1984.
William B. Reynolds, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., for plaintiff-appellant.
Robert C. Howard, Hartunian, Futterman & Howard, Chtd., Chicago, 111., for defendant-appellee.
Before CUMMINGS, Chief Judge, and WOOD and FLAUM, Circuit Judges.
FLAUM, Circuit Judge.
This case comes before us for the second time on appeal from an order of the district court interpreting and enforcing a consent decree that was executed by the United States and the Board of Education of Chicago (“Board”). For the reasons set forth below, we vacate the order and remand this case for an evidentiary hearing.
I. FACTS
A. Events Prior to the First Appeal
As we explained in our first opinion, see United States v. Board of Education of Chicago, 717 F.2d 378 (7th Cir.1983), this case arises from a complaint that the United States filed against the Board on September 24, 1980, charging that Chicago’s public school system was racially segregated in violation of the fourteenth amendment and titles IV and VI of the Civil Rights Act of 1964. On the same day, the parties filed a previously-negotiated consent decree (“Decree”) in which they agreed that the Board would develop and implement a system-wide plan to remedy the effects of past segregation on black and Hispanic students in Chicago schools. Beginning in 1981, the Board developed and implemented a desegregation plan, which was later approved by the district court. See United States v. Board of Education of Chicago, 554 F.Supp. 912 (N.D.Ill.1983).
On May 31, 1983, the Board petitioned for an order directing the United States to comply with ¶ 15.1 of the Decree, which provides that
[e]ach party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan.
After five days of hearings, the district court entered an order on June 30, 1983 (“1983 Order”), finding that the United States had violated H 15.1 by failing to provide adequate desegregation funding, by taking no affirmative steps to find and provide such funding, and by taking affirmative steps to minimize and eliminate available sources of funding. See United States v. Board of Education of Chicago, 567 F.Supp. 272, 286-87 (N.D.Ill.1983). The court held that under the plain meaning of ¶ 15.1, and also because the government actively worked to make funds unavailable, the United States was “obligated to take every affirmative step within its legal authority to find and provide adequate financing for the plan.” Id. at 283 (Conclusion of Law No. 7). According to the district court, this obligation required the United States to provide presently available funds, to find every available source of funds, to support specific legislative initiatives to meet the obligations of the Board, and “not [to] fail[] to seek appropriations that could be used for desegregation assistance to the Board.” Id. (Conclusion of Law No. 9). The court decided that, at a minimum, the United States was to provide the portion of funding adequate for full implementation of the desegregation plan that the Board could not provide, to the extent such funding was available to or could be made available by the United States. Id. at 287-88. For the 1983-84 school year, the district court found that this obligation was not less than $14.6 million, and the court enjoined the United States from spending or obligating certain funds in several of the Department of Education’s monetary accounts so as to insure that these funds would remain available pending the final resolution of the case.
B. The First Appeal
The United States appealed the' 1983 Order, arguing that ¶ 15.1 merely required it to make a good faith effort to assist the Board in locating and applying for funds that had been earmarked by Congress for school districts undergoing desegregation. In an opinion issued on September 9, 1983, this court rejected the government’s argument; we interpreted ¶ 15.1 as requiring the United States to do more than assist the Board in locating and applying for federal funds and as imposing “a substantial obligation on the government to provide available funds to the Board.” United States v. Board of Education of Chicago, 717 F.2d at 383.
After considering the findings and conclusions of the district court, we refused to decide whether the United States violated ¶ 15.1 of the Decree by taking such policy-oriented steps as requesting Congress to reduce or rescind appropriations for certain programs, supporting legislation that replaced direct grant programs with federal block grants, and supporting the dismantling of the Department of Education. Instead, we held that the United States violated ¶ 15.1 by failing to provide available funds to the Board, and we specifically referred to funds from the Department of Education’s Title IY account and Discretionary Fund. Id. & n. 8.
With regard to the issue of remedies, this court found that “the district court acted with excessive dispatch in delineating specific remedies immediately after finding a violation of ¶ 15.1.” Id. at 384. We held that “the district court should provide the Department [of Education] an opportunity to fashion its proposed remedy for past noncompliance, as well as a chance to show that it intends to comply in the future, before structuring detailed remedial action that may still be necessary.” Id. at 385. Accordingly, we vacated all remedies, affirmed the temporary injunction against government use of certain funds so as to preserve the status quo, and remanded the case to the district court.
C. Events Subsequent to the First Appeal
1. Congressional Activities
On September 21, 1983, United States Representative Sydney Yates proposed the following legislation:
There is hereby appropriated $20,000,000 to be derived by transfer from funds available for obligation in fiscal year 1983 in the appropriation for “Guaranteed Student Loans,” to remain available for obligation until September 30, 1984, to enable the Secretary of Education to comply with the Consent Decree entered in United States District Court in the case of the United States of America against the Board of Education for the City of Chicago (80 C 5124) on September 24, 1980.
This provision (“the Yates Bill”) was incorporated by Congress into H.J. Res. 368, a continuing resolution to provide temporary funding for several federal departments in fiscal year 1984. The President signed H.J. Res. 368 into law on October 1, 1983. Three days later, on October 4, United States Senator Lowell Weicker proposed an amendment to the Yates Bill (“the Weicker Amendment”), which was adopted by Congress on October 31, 1983, in the following form:
No funds appropriated in any act to the Department of Education for fiscal years 1983 and 1984 shall be withheld from distribution to grantees because of the provision of the order entered by U.S. District Court for Northern District of Illinois on June 30, 1983: Provided, that the Court’s decree entered on September 24, 1980 shall remain in full force and effect.
In response to a motion that the Board submitted after the enactment of the Yates Bill, the district court ruled, on October 5, that as soon as the Secretary of Education obligated to the Board the $20 million allocated by the Yates Bill, the government would be permitted to use $15.66 million in the Department of Education accounts that remained temporarily frozen. On the same day, the United States moved the district court to vacate its 1983 Order and to declare that the $20 million allocated to the Board under the Yates Bill brought the United States into compliance with the Decree. The government renewed this motion on November 10, arguing that in light of the Yates Bill and the Weicker Amendment, no funds beyond the appropriated $20 million were available to the Board for fiscal years 1983 and 1984. The district court denied the government’s motion on November 21, 1983.
2. Activities on Remand
At a status hearing on October 5, 1983, the district court decided that an evidentiary hearing, which originally had been scheduled for August 10, 1983, was still needed to determine the level of funding that the Board required in order to implement its desegregation plan. See Transcript of October 5, 1983, at 13-14. The government contended that the hearing exceeded our remand instructions to the extent that the hearing was to establish the Board’s needs and the government’s obligations beyond the $20 million allocated by the Yates Bill. See id. at 23; United States’ Pre-Trial Brief on Remand Proceeding, dated March 13, 1984. From October 1983 to March 1984, the parties submitted numerous filings in preparation for the hearing, which began on March 23, 1984, and continued for nine days. Witnesses for the Board testified about the programs that the Board had developed under its desegregation plan, the costs of these programs, and the sources of program funding. In addition, the Board presented evidence of lobbying activity undertaken by the Executive Branch with regard to the Yates Bill and the Weicker Amendment. The United States called only one witness, who discussed the use of federal Title I funds for desegregation expenses.
On June 8, 1984, the district court issued an extensive opinion (“1984 Opinion”) in which it reviewed the evidence presented during the hearing. 588 F.Supp. 132. The court found from this evidence that most of the programs under the Board’s desegregation plan materially aid the successful implementation of the plan and that the costs of these programs are reasonable under the circumstances. See 1984 Findings of Fact Nos. 210-59. Furthermore, the court found that the level of funding adequate for full implementation of the desegregation plan in the 1984-85 school year is approximately $171,631 million. 1984 Finding of Fact No. 265. Of this amount, the court determined that the Board will not be able to fund $103,858 million, despite the Board’s best efforts to do so. Incorporating its 1983 ruling that ¶ 15.1 requires the United States to provide the portion of funding adequate for full implementation of the desegregation plan that the Board cannot provide, see 1984 Conclusions of Law Nos. 6-8, the district court decided that the “share ... the United States is obligated to make every good faith effort to find and provide pursuant to [¶] 15.1 is $103,858 million.” 1984 Conclusion of Law No. 38.
Addressing the actions of the United States since the issuance of the 1983 Order, the district court found that the government acted in bad faith by failing to provide funds to the Board,^by failing to request congressional appropriations for the Board, by deciding not to reprogram available funds for use by the Board, by deciding not to provide direct grants to local educational agencies for purposes of desegregation, by attempting to make funds unavailable through congressional lobbying efforts during passage of the Yates Bill and the Weicker Amendment, by redrafting administrative regulations regarding the Secretary of Education’s Discretionary Fund, and by submitting a plan for supporting the Board’s desegregation efforts which, according to the court, “contained no adequate suggestions ... for providing further funding.” See 1984 Conclusions of Law Nos. 120-21, 123-26. The court ruled that, viewed either alone or in the circumstances of the government’s bad faith, “[¶] 15.1 (as a matter of construction) requires the Executive Branch promptly to undertake some combination of ... lobbying activities to the extent necessary to assure financing adequate for implementation of the [desegregation] [p]lan.” 1984 Conclusion of Law No. 142. Such activities include requesting appropriations from Congress and opposing contrary legislative initiatives.
After allowing the United States time to respond to its opinion, the district court issued an order on August 13, 1984 (“1984 Remedial Order”), declaring that, “in light of the [ ] present circumstances, the United States has an unconditional obligation to provide Board with $103.858 million for implementation of the [desegregation] [p]lan in school year 1984-85.” 1984 Remedial Order at 9. The court further ordered that, in the event the United States failed to provide the funds by August 22, 1984, the United States was permanently enjoined to take all necessary steps to obligate for the use of the Board $17 million in the 1984 Discretionary Fund and $11.775 million in the 1984 Title IV account. Id. at 11-12. Furthermore, the court declared that the United States must formulate an affirmative program each year to assure that up to $103.858 million is placed in an escrow account. Such a program would consist of the identification of available funds, recommendations to Congress, and lobbying activities. Id. at 12-15.
The government now appeals the district court’s 1984 Opinion and 1984 Remedial Order, and it advances two arguments. First, the United States contends that the district court erred in interpreting ¶ 15.1 as requiring the Executive Branch to engage in legislative activity, to make up the difference between the funds necessary for implementing the desegregation plan and the funds that the Board has budgeted for this purpose, and to award Title IV funds and Discretionary Funds to the Board without regard to other grantees. Second, the government maintains that if the district court’s interpretation of ¶ 15.1 is correct, the Decree is unenforceable because it violates the constitutional doctrine of separation of powers. According to the government, the Executive Branch does not have the authority to bargain away its discretion with respect to its legislative activities or to commit unlimited financial assistance to only one grantee, in contravention of the legislative purpose of the desegregation funding statutes.
II. ANALYSIS
As both parties and the district court have acknowledged, ¶ 15.1 is a unique funding provision in a consent decree that constitutes an unprecedented settlement of a school desegregation claim by the United States. Mindful of the novelty of the agreement, we carefully crafted our prior opinion so as to permit the maximum amount of flexibility and cooperation among the participants in the Decree as they labored toward a workable resolution of the dispute regarding funds for Chicago school desegregation. Our review of the events that transpired on remand convinces us that the process of dispute resolution has failed remarkably in this case.
A. Interpretation of ¶ 15.1
As we recounted above, our prior opinion interpreted ¶ 15.1 as “imposing] a substantial obligation on the government to provide available funds to the Board.” United States v. Board of Education of Chicago, 717 F.2d at 383. Since the United States had misinterpreted ¶ 15.1 as merely requiring that the government assist the Board in filing applications for federal aid, and since it had failed to provide available funds to the Board, we remanded the case to the district court to give the government an opportunity to show that it intended to comply with ¶ 15.1 in the future. On November 10, 1983, the government submitted the “Plan of the United States for Supporting the Desegregation Plan of the Board of Education of the City of Chicago” (“November 10 Plan”), in which it outlined its position, later rejected by the district court, that the Weicker Amendment had rendered unavailable to the Board any 1984 funds beyond the $20 million allocated by the Yates Bill. However, in the November 10 Plan, the government also stated for the first time that it was prepared to give the Board priority in the distribution of desegregation funds under existing federal programs. The district court gave little weight to the November 10 Plan. In its 1984 Opinion, the court stated that the plan “contained no adequate suggestions at all for remedying the United States’ past Consent Decree violations or for providing further funding for the [desegregation] [p]lan.” 1984 Conclusion of Law No. 123.
During the most recent oral arguments before this court, counsel for the government answered questions regarding the government’s system of “priority” and explained that, under this system, the Department of Education will put the Board “at the top of the list” for any program grants that can be applied to desegregation assistance and for which the Board is eligible. According to the government's counsel, “top of the list priority” for Title IV funds not only is a guarantee that the Board will receive its “equitable fair share” of funding under Title IV criteria, but also requires that this funding be earmarked for Chicago and be set apart from the usual block grant funding that is allocated to the regional desegregation centers serving the Midwest. Furthermore, the government’s counsel explained that, with regard to the Discretionary Fund, “top of the list” priority means that if the Board were to submit a research or development project that would aid its desegregation efforts, the Board would have priority “to get what the project called for.”
After considering the government’s oral explanation of this priority system, especially the government counsel’s assurance that this priority is not available to any other school district in the country, we conclude that by guaranteeing that the Board will be funded on a priority basis under existing school desegregation programs, the amount of which funding is determined by program criteria and is subject to the review of the district court, the government would comply with our interpretation of ¶ 15.1 and would fulfill its “substantial obligation to provide available funds.”
By so ruling, we reject the district court’s conclusion that ¶ 15.1 mandates that the government attempt to make funds available through legislative activity so as to provide the portion of necessary funding that the Board cannot supply. The district court had reached this conclusion in its 1983 Order and had relied upon it in conducting the March 1984 hearings, which established the level of funding needed to implement the Board’s desegregation plan. In its 1984 Opinion, the district court noted that since we had not rejected its 1983 conclusion regarding the government’s obligation, that conclusion became the law of the case. 1984 Conclusions of Law Nos. 6-8. However, the district court also observed that it was not barred from reconsidering its 1983 conclusions, and it explained that the refusal to reconsider previously decided principles on remand is “a self-imposed (hence non-binding) prudential limitation.” 1984 Conclusion of Law No. 1(a). In light of the strong indication in our prior opinion that a government's attempts to remedy its noncompliance with a consent decree are to be preferred over judicially-imposed remedies, the district court would have acted with optimal prudence if it had not inferred that our silence regarding its 1983 conclusions indicated validation, see 1984 Conclusion of Law No. 6, and if it had freshly reassessed, prior to the submission of the November 10 Plan, its interpretation that ¶ 15.1 requires the government to engage in legislative activities to make available the necessary desegregation funding that the Board cannot supply. Such a reassessment was appropriate despite the exhaustive work already undertaken by the district court and the understandable frustration that attended the judicial monitoring of the Decree.
After closely examining the extrinsic evidence surrounding the adoption of ¶ 15.1 into the Decree, we must conclude that there is inadequate support for the district court’s interpretation. In the parties’ stipulation regarding the negotiations leading to the adoption of ¶ 15.1, we find no indication that the parties had any federal funding sources in mind other than programs that could be used, consistent with the intent of Congress, to fund school desegregation efforts. To the extent that the district court reads the June 19, 1980, letter from Assistant Attorney General Drew Days to the Board as indicating that the parties contemplated legislative initiatives on the part of the Executive Branch to make funds available, see 1984 Conclusion of Law No. 139, we find this reading to be clearly erroneous. The applicable wording in this letter tracks the language in ¶ 15.1 and does not amplify or further explain the parties’ intent.
We thus remand this case for a determination of whether the Board is receiving the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed. In the likely event that the Board has financial needs that are still unmet, we note that the government has admitted that it has a “duty to search among funds that Congress had indeed made ... available.” Transcript of April 5, 1984, at 1416. The best proof that the government is fulfilling this duty would be the assignment of personnel to the task of periodically reviewing federal funding programs, in the Department of Education and in other federal agencies, for unencumbered funds that may be used to advance the Board’s desegregation plan.
B. Bad Faith
The district court relied on its finding of governmental bad faith, in addition to its interpretation of ¶ 15.1, as support for its 1984 remedial ruling that the United States had an unconditional obligation to provide $103,858 million to the Board for the 1984-85 school year. In light of our holding that ¶ 15.1 does not require the government to engage in legislative activities in order to make desegregation funds available, we find that the district court erred in concluding that the government acted in bad faith by failing to request congressional appropriations for the Board, and by deciding not to reprogram funds for use by the Board. Furthermore, we find erroneous the district court’s determination of bad faith in the government’s decision not to provide direct grants for school desegregation. This policy decision applies to all school districts and does not indicate intent on the part of the United States specifically to avoid its obligation under ¶ 15.1.
In its most significant finding of bad faith, the district court described lobbying activities of the Executive Branch during the passage of the Yates Bill and the Weicker Amendment. According to the findings of the district court, see 1984 Findings of Fact Nos. 504-17, the Executive Branch supported a proposed addition to the Yates Bill that specifically would have made unavailable to the Board the funds that had been restrained by the district court. Although this proposed provision was not adopted by the House of Representatives, the Executive Branch continued to lobby for specific language in the Yates Bill to make the restrained funds unavailable to the Board. Even after the Yates Bill was signed into law without the desired language, the Executive Branch worked toward the inclusion of such language in the Weicker Amendment. On October 5, 1983, prior to the passage of the Weicker Amendment, the United States appeared before the district court and argued that very recent legislative history surrounding the yet-unenacted Weicker Amendment indicated that no funds other than the $20 million allocated by the Yates Bill were available to the Board and that, as a result, the court’s 1983 Order should be dismissed. See Transcript of October 5, 1983, at 31-33. Although the Executive Branch continued to lobby for language in the Weicker Amendment to make funds unavailable to the Board, the amendment ultimately was enacted without this language.
The United States consistently has maintained that its legislative activities are unreviewable by the judiciary, thus prompting the Board to complain that the government’s Yates-Weicker lobbying efforts were designed to force a constitutional issue upon the courts. Transcript of March 20, 1984, at 36-37. We need not reach any conclusion regarding the Yates-Weicker legislative activities, for we find that, even if these activities constituted bad faith violations of the Decree, the district court abused its discretion by ordering a $103,858 million monetary remedy against the government. Given the clear factual and procedural background of this case, it should have been apparent to the district court that if the government were compelled to pay this judgment for its bad faith, no federal desegregation money would have been available (or would have been made available) to other school districts. Such a result would have been unreasonable.
The proper remedy for any bad faith violations of the Decree in connection with the Yates-Weicker activities would have been a civil contempt citation under which the district court could have ordered the government either to refrain from specific efforts to make desegregation funds unavailable to the Board or to inform Congress about the funding obligations of the government under the Decree. Cf. Nelson v. Steiner, 279 F.2d 944, 948 (7th Cir.1960) (district court did not abuse discretion in holding state official in civil contempt, since “[t]he executive branch of government has no right to treat with impunity the valid orders of the judicial branch”). Since the time for such a remedial measure has passed, wé do not decide whether the Executive Branch’s YatesWeicker legislative activities constituted bad faith violations of the Decree.
In the circumstances of this case, we deem it important to note that the actions of the Executive Branch described above and reflected in the hearings below could be interpreted to contravene the spirit of the Decree. Such actions, while perhaps within constitutional limits, cannot enhance the respect to which this Decree is entitled and do not befit a signatory of the stature of the United States Department of Justice. The Executive Branch initiated this critical litigation and bears a continuing shared and special responsibility for its eventual outcome, regardless of changes in personnel and ideology that will inevitably accompany the passage of time.
III. CONCLUSION
Accordingly, we vacate the district court’s 1984 Opinion and 1984 Remedial Order, and we remand this case for proceedings consistent with part 11(A) of this decision. Circuit Rule 18 shall apply on remand.
. In reaching this interpretation, we specifically upheld both Conclusion of Law No. 8 of the 1983 Order ("the United States' promise [under U 15.1] entails a serious and substantial obligation”) and the district court's finding, expressed during the June 1983 hearings, that ¶ 15.1 embraces the grant of funds, not just technical assistance in applying for funds (Transcript of June 8, 1983, at 23). See United States v. Board of Education of Chicago, 717 F.2d at 381-83.
. Since we noted a discrepancy in the district court’s 1983 Order as to whether funds in the Title IV account and in the Discretionary Fund were available for use by the Board, we directed the district court on remand to verify the availability of these funds. United States v. Board of Education of Chicago, 717 F.2d at 383 n. 8. In another footnote, we instructed the district court to make known its findings of fact regarding the $14.6 million that it had determined was " 'the amount of additional incremental expenditures required by Board to achieve the necessary threshold level of funding for Educational Components in predominately minority schools.’" Id. at 380 n. 2. Both of these district court tasks were necessary for clarification of the record and were to be carried out within the context of our carefully expressed instruction that the district court afford the government an opportunity to propose the means by which it would attempt to comply with ¶ 15.1.
. The government has wisely abandoned this position in its argument to this court.
. Prior to its submission of the November 10 Plan, the United States had insisted that ¶ 15.1 did not entitle the Board to any priority consideration in the Department of Education's allocation of desegregation funds. See Memorandum in Support of the United States’ Motion For a Stay Pending Appeal, filed July 19, 1983, at 29.
. Indeed, the district court concluded that by submitting the November 10 Plan, the government "willfully and in bad faith” violated the district court’s October 28 order directing the United States to draft a plan for its compliance with ¶ 15.1.
. We understand, from this explanation, that "top of the list priority” would preclude the situation that occurred in 1983, where the Board was denied Discretionary Funds because its two proposed projects were ranked thirteenth and twenty-eighth, and only the top ten projects received funding. See United States’ Answers and Objections to Chicago Board of Education's Second and Third Set of Interrogatories, at 8-9 (filed with Board's Motion to Compel dated November 17, 1983).
. Counsel for the government acknowledged at oral argument that ¶ 15.1 binds the Secretary of Education’s discretion with respect to the funds that may be used for school desegregation pursuant to congressional appropriation, and he conceded that a district court may review the Secretary's exercise of discretion in distributing those funds to the Board.
. Given the narrow holding in our prior opinion that the government violated ¶ 15.1 by failing to provide available funds, we had no need to decide whether ¶ 15.1 obligated the government to engage in activities to make funds available in order to provide the amount needed to implement the plan.
. As described by the district court, it is the Secretary of Education’s policy to seek the approval of congressional leaders before effecting any reprograming of funds. 1984 Finding of Fact No. 427. Since this policy applies to all reprograming of funds, we cannot view it as an attempt to evade the government’s obligations under the Decree.
. Similarly, we must overrule the district court’s finding that the government’s redrafting of administrative regulations limiting grants of Discretionary Funds constitutes bad faith. These regulations embody general policy decisions applicable to all grantees, and we thus cannot conclude that they were drafted specifically to avoid the government’s obligations under ¶ 15.1.
. If the district court had entered such a contempt order and the government then persisted in its efforts to make funds unavailable, criminal contempt charges might have been appropriate. See United States v. Joyce, 498 F.2d 592, 596 (7th Cir.1974) (willful and contumacious resistance to a court order is necessary to support a criminal contempt charge).
. As an additional ground for its finding of bad faith, the district court cited the government’s submission to Congress of § 309 of the President's proposed budget of the Department of Education (Board Exhibit No. 57):
No funds appropriated in any Act to the Department of Education for fiscal years 1984 and 1985 other than those appropriated by section 111 of Public Law 98-107 shall be available to fund the consent decree between the United States and the Board of Education of the City of Chicago: Provided, That the court’s decree entered on September 24, 1980, shall remain in full force and effect and nothing in this provision shall be construed to preclude the Board of Education of the City of Chicago from receiving Department of Education funds for which it is eligible under applicable program statutes and regulations or from using such funds, as appropriate, to support activities under its desegregation plan. (Public Law 98-139. Department of Education Appropriation Act, 1984.)
1984 Conclusion of Law No. 125(h).
At the hearing concluded on March 28, 1984, counsel for the Board asked the director of the Department of Education’s budget service whether § 309 constituted "negative earmarking.” Transcript of March 28, 1984, at 1078. In reply, the director stated that § 309 does not preclude the Board from applying for funds under existing federal programs. Id. The transcript does not make clear, however, whether § 309 would specifically prevent Congress from making any funds available for the Board’s desegregation plan, other than the funds granted by the Yates Bill and the funds available under existing programs. On remand, the district court may take further evidence to determine whether § 309 would have such an effect and thus would constitute a possible bad faith violation of ¶ 15.1 of the Decree.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer:
|
songer_genstand
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
John Calvin JOHNSON, Appellant, v. Walter M. RIDDLE, Appellee.
No. 76-2035.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 18, 1977.
Decided Sept. 16, 1977.
Randall M. Chastain, Columbia, S.C. (G. Anthony Campbell, U.S.C. Law Center, Columbia, S.C., on brief), for appellant.
Jim L. Chin, Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Va., Richmond, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
Circuit Judge Craven participated in the decision of this case but died before the opinion was prepared.
WIDENER, Circuit Judge:
In this federal habeas corpus proceeding, petitioner John Calvin Johnson challenges the validity of a 1957 armed robbery conviction upon which a current three-year recidivist sentence is partially based. The district court denied relief, and we affirm.
Johnson directs four assignments of error at his 1957 conviction: (1) The systematic exclusion of black people from the grand jury that indicted him; (2) denial of his right of appeal; (3) ineffective assistance of counsel at the appellate stage of the proceedings; and (4) the use of an impermissibly suggestive identification procedure consisting of a pre-trial showup.
I
Grand Jury Selection
Petitioner is precluded from raising the issue of the exclusion of black people from the grand jury that indicted him in 1957. Under State law, such an issue must be raised at a preliminary stage of the original State court proceeding, prior to the time a plea is entered on the merits, or else the objection is waived. Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368 (1952). Petitioner having raised this issue for the first time 17 years after his trial and conviction, his objection was waived under State law, and cannot, under the facts before us, be asserted now in a federal habeas corpus proceeding. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Neither cause for the failure to raise the point at the time nor actual prejudice has been shown here. Francis, p. 542, 96 S.Ct. 1708.
II
Right to Appeal and Ineffective Assistance of Counsel
Although petitioner’s brief phrases this aspect of the case in terms of denial of a right to appeal and ineffective assistance of counsel, both of these claims share the same factual basis, that petitioner told his appointed counsel that he wished to appeal his 1957 conviction but that counsel failed to follow through on the request.
Petitioner chose to raise these claims for the first time seventeen years after his trial and conviction, although nothing prevented him from doing so at a time when the State might have had a chance of reconstructing the record and surrounding events in an effort to explain why an appeal was never filed. We agree with the district court that petitioner’s contention is raised too late to avail him. See Lunnermon v. Peyton, 310 F.Supp. 323 (W.D.Va.1970), aff’d per curiam in 440 F.2d 774 (4th Cir. 1971).
While in other contexts substantial delays in seeking habeas corpus relief have not precluded consideration of the points raised, see, e.g., Garland v. Cox, 472 F.2d 875 (4th Cir. 1973); Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), in neither case cited was there so great, and so unjustified, a potential for prejudice to the Commonwealth. In Garland, for example, it was undisputed that petitioner’s counsel had first been appointed the day of the trial, raising a strong presumption of ineffective assistance. And in Hairston, a case arising prior to Francis v. Henderson, supra, there was ample opportunity to gather evidence pertaining to the long standing practice of unconstitutionally excluding black people from grand jury service.
In the present case, in contrast, we have only petitioner’s allegation that he requested an appeal, and that counsel failed to perfect one. Based on this allegation, easily made after 17 years of silence but obviously difficult to disprove, petitioner would have us remand for an evidentiary hearing, where, presumably, the State should be required to rebut what, on its face, is a claim that might entitle petitioner to the relief he seeks. If the State were shown to have a reasonable opportunity to make the kind of factual reconstruction necessary to such a task, that might be another case, but nothing in the record suggests the opportunity exists after a lapse of 17 years.
In arriving at our decision, we also give weight to the fact that petitioner makes no effort to explain or to justify the delay. Indeed, he did not even challenge the conviction now before us at the recidivist proceeding itself in 1971, where, generally, the only defense is the invalidity of a previous conviction. Smith v. Superintendent, 214 Ya. 359, 200 S.E.2d 523 (1973). This failure is given added significance in this case because, in response to the State’s contention that he still has available a State habeas corpus remedy by asserting the ineffective assistance of counsel at the 1971 recidivist proceeding, the petitioner here denies that he was ineffectively represented in the recidivist proceeding in 1971, thus admitting effective representation in the very proceeding from which came the sentence he is attacking. Because his admittedly effective counsel did not assert the invalidity of the 1957 conviction, we may only assume that in 1971 the petitioner did not have reason to believe his 1957 conviction was invalid because of any denied right to appeal, and, in the context we find the omission here, it must weigh heavily against the petitioner’s position. It would be strange indeed that an admittedly effective attorney did not assert a good defense, and no explanation for this omission is offered by petitioner. His argument, in explanation, that at that time (1971) he might have proceeded to review this matter either by habeas corpus or by appeal, see Smith, 200 S.E.2d at 524, is belied by the fact that he did not file his State petition for habeas corpus until 1974, some three years after the conviction. And this although he was admittedly represented by a competent attorney. We also note that petitioner is now on parole, thus negating any potential practical disability which might be attached to confinement.
We do not downgrade the difficulties these allegations present. But we also cannot ignore the fact that they were largely engendered by the petitioner himself in waiting so long to raise his claims, in circumstances where a detailed factual reconstruction necessary to test the validity of those claims would be most difficult, if not possible. In these circumstances, we hold that petitioner’s objections must be deemed waived.
Ill
The Show-Up
Petitioner claims that a pre-trial identification procedure, at which he was identified as the perpetrator of the robbery, was so unduly suggestive as to create a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The facts cited in support of this claim were that petitioner was shown singly to the victim of the crime, rather than as part of a line-up, and that several police officers were present as well.
To be sure, the show-up may not be a favored procedure. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But it is equally clear that the use of such a procedure does not necessarily violate due process; such a determination can only be made by reference to the totality of circumstances. Stovall, supra, at 302, 87 S.Ct. 1967.
The general allegation advanced by petitioner that the show-up was impermissibly suggestive derives factual support only from the mere fact of the use of the show-up itself. No supporting facts relating to the totality of circumstances are brought to our attention. Surely the fact that police officers were present is insufficient, when the identification occurred in a police station and petitioner was being held on an unrelated charge.
We therefore hold that petitioner’s general, unsupported allegations are insufficient to make out a prima facie case of unconstitutional identification.
The judgment of the district court denying the writ of habeas corpus is
AFFIRMED.
. The Virginia recidivist statute is Va.Code Ann. § 53-296. Petitioner has been discharged from his 1957 conviction, and is presently serving sentences for a 1970 conviction for possession and sale of narcotics, and a 1971 conviction for possession of a controlled drug. Although the recidivist statute requires a total of only two convictions to be applicable, we consider the validity of the 1957 conviction to be in issue since it was included in the recidivist information, and could have played a part in the sentence imposed for recidivism. The petitioner is presently on parole.
. The Twenty-Fourth Annual Report of the Virginia State Bar For the Year Ending June 30, 1962 shows that Philip Whitfield, the attorney in the 1957 conviction, died during that fiscal year.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_petitioner
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SOUTH CAROLINA v. KATZENBACH, ATTORNEY GENERAL.
No. 22,
Orig.
Argued January 17-18, 1966.
Decided March 7, 1966.
David W. Robinson II and Daniel R. McLeod, Attorney General of South Carolina, argued the cause for the plaintiff. With them on the brief was David W. Robinson.
Attorney General Katsenbach, defendant, argued the cause pro se. With him on the brief were Solicitor General Marshall, Assistant Attorney General Doar, Ralph S. Spritzer, Louis F. Claiborne, Robert S. Rifkind, David L. Norman and Alan G. Marer.
R. D. Mcllwaine III, Assistant Attorney General, argued the cause for the Commonwealth of Virginia, as amicus curiae, in support of the plaintiff. With him on the brief were Robert Y. Button, Attorney General, and Henry T. Wickham. Jack P. F. Gremillion, Attorney General, argued the cause for the State of Louisiana, as amicus curiae, in support of the plaintiff. With him on the brief were Harry J. Kron, Assistant Attorney General, Thomas W. McFerrin, Sr., Sidney W. Provensal, Jr., and Alfred Avins. Richmond M. Flowers, Attorney General, and Francis J. Mizell, Jr., argued the cause for the State of Alabama, as amicus curiae, in support of the plaintiff. With them on the briefs were George C. Wallace, Governor of Alabama, Gordon Madison, Assistant Attorney General, and Reid B. Barnes. Joe T. Patterson, Attorney General, and Charles Clark, Special Assistant Attorney General, argued the cause for the State of Mississippi, as amicus curiae, in support of the plaintiff. With them on the brief was Dugas Shands, Assistant Attorney General. E. Freeman Leverett, Deputy Assistant Attorney General, argued the cause for the State of Georgia, as amicus curiae, in support of the plaintiff. With him on the brief was Arthur K. Bolton, Attorney General.
Levin H. Campbell, Assistant Attorney General, and Archibald Cox, Special Assistant Attorney General, argued the cause for the Commonwealth of Massachusetts, as amicus curiae, in support of the defendant. With Mr. Campbell on the brief was Edward W. Brooke, Attorney General, joined by the following States through their Attorneys General and other officials as follows: Bert T. Kobayashi of Hawaii; John J. Dillon of Indiana, Theodore D. Wilson, Assistant Attorney General, and John 0. Moss, Deputy Attorney General; Lawrence F. Scalise of Iowa; Robert C. Londerholm of Kansas; Richard J. Dubord of Maine; Thomas B. Finan of Maryland; Frank J. Kelley of Michigan, and Robert A. Derengoski, Solicitor General; Forrest H. Anderson of Montana; Arthur J. Sills of New Jersey; Louis J. Lef-kowitz of New York; Charles Nesbitt of Oklahoma, and Charles L. Owens, Assistant Attorney General; Robert Y. Thornton of Oregon; Walter E. Alessandroni of Pennsylvania; J. Joseph Nugent of Rhode Island; John P. Connarn of Vermont; C. Donald Robertson of West Virginia; and Bronson C. LaFollette of Wisconsin. Alan B. Handler, First Assistant Attorney General, argued the cause for the State of New Jersey, as amicus curiae, in support of the defendant. Briefs of amici curiae, in support of the defendant, were filed by Thomas C. Lynch, Attorney General, Miles J. Rubin, Senior Assistant Attorney General, Dan Kaufmann, Assistant Attorney General, and Charles B. McKesson, David N. Rakov and Philip M. Rosten, Deputy Attorneys General, for the State of California; and by William O. Clark, Attorney General, Richard E. Friedman, First Assistant Attorney General, and Richard A. Michael and Philip J. Rock, Assistant Attorneys General, for the State of Illinois.
Me. Chief Justice Waeren
delivered the opinion of the Court.
By leave of the Court, 382 U. S. 898, South Carolina has filed a bill of complaint, seeking a declaration that selected provisions of the Voting Rights Act of 1965 violate the Federal Constitution, and asking for an injunction against enforcement of these provisions by the Attorney General. Original jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. Ill, § 2, of the Constitution. See Georgia v. Pennsylvania R. Co., 324 U. S. 439. Because no issues of fact were raised in the complaint, and because of South Carolina’s desire to obtain a ruling prior to its primary elections in June 1966, we dispensed with appointment of a special master and expedited our hearing of the case.
Recognizing that the questions presented were of urgent concern to the entire country, we invited all of the States to participate in this proceeding as friends of the Court. A majority responded by submitting or joining in briefs on the merits, some supporting South Carolina and others the Attorney General. Seven of these States also requested and received permission to argue the case orally at our hearing. Without exception, despite the emotional overtones of the proceeding, the briefs and oral arguments were temperate, lawyerlike and constructive. All viewpoints on the issues have been fully developed, and this additional assistance has been most helpful to the Court.
The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century. The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country. Congress assumed the power to prescribe these remedies from § 2 of the Fifteenth Amendment, which authorizes the National Legislature to effectuate by “appropriate” measures the constitutional prohibition against racial discrimination in voting. We hold that the sections of the Act which are properly before us are an appropriate means for carrying out Congress’ constitutional responsibilities and are consonant with all other provisions of the Constitution. We therefore deny South Carolina’s request that enforcement of these sections of the Act_be enjoined.
I.
The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects. Before enacting the measure, Congress explored with great care the problem of racial discrimination in voting. The House and Senate Committees on the Judiciary each held hearings for nine days and received testimony from a total of 67 witnesses. More than three full days were consumed discussing the bill on the floor of the House, while the debate in the Senate covered 26 days in all. At the close of these deliberations, the verdict of both chambers was overwhelming. The House approved the bill by a vote of 328-74, and the measure passed the Senate by a margin of 79-18.
Two points emerge vividly from the voluminous legislative history of the Act contained in the committee hearings and floor debates. First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Second: Congress concluded that the unsuccessful rem-ediés which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment. We pause here to summarize the majority reports of the House and Senate Committees, which document in considerable detail the factual basis for these reactions by Congress. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 8-16 (hereinafter cited as House Report); S. Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 3-16 (hereinafter cited as Senate Report).
The Fifteenth Amendment to the Constitution was ratified in 1870. Promptly thereafter Congress passed the Enforcement Act of 1870, which made it a crime for public officers and private persons to obstruct exercise of the right to vote. The statute was amended in the following year to provide for detailed federal supervision of the electoral process, from registration to the certification of returns. As the years passed and fervor for racial equality waned, enforcement of the laws became spotty and ineffective, and most of their provisions were repealed in 1894. The remnants have had little significance in the recently renewed battle against voting discrimination.
Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that as of 1890 in each of the named States, more than two-thirds of the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write. At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, “good character” tests, and the requirement that registrants “understand” or “interpret” certain matter.
The course of subsequent Fifteenth Amendment litigation in this Court demonstrates the variety and persistence of these and similar institutions designed to deprive Negroes of the right to vote. Grandfather clauses were invalidated in Guinn v. United States, 238 U. S. 347, and Myers v. Anderson, 238 U. S. 368. Procedural hurdles were struck down in Lane v. Wilson, 307 U. S. 268. The white primary was outlawed in Smith v. Allwright, 321 U. S. 649, and Terry v. Adams, 345 U. S. 461. Improper challenges were nullified in United States v. Thomas, 362 U. S. 58. Racial gerrymandering was forbidden by Gomillion v. Lightfoot, 364 U. S. 339. Finally, discriminatory application of voting tests was condemned in Schnell v. Davis, 336 U. S. 933; Alabama v. United States, 371 U. S. 37; and Louisiana v. United States, 380 U. S. 145.
According to the evidence in recent Justice Department voting suits, the latter stratagem is now the principal method used to bar Negroes from the polls. Discriminatory administration of voting qualifications has been found in all eight Alabama cases, in all nine Louisiana cases, and in all nine Mississippi cases which have gone to final judgment. Moreover, in almost all of these cases, the courts have held that the discrimination was pursuant to a widespread “pattern or practice.” White applicants for registration have often been excused altogether from the literacy and understanding tests or have been given easy versions, have received extensive help from voting officials, and have been registered despite serious errors in their answers. Negroes, on the other hand, have typically been required to pass difficult versions of all the tests, without any outside assistance and without the slightest error. The good-morals requirement is so vague and subjective that it has constituted an open invitation to abuse at the hands of voting officials. Negroes obliged to obtain vouchers from registered voters have found it virtually impossible to comply in areas where almost no Negroes are on the rolls.
In recent years, Congress has repeatedly tried to cope with the problem by facilitating case-by-case litigation against voting discrimination. The Civil Rights Act of 1957 authorized the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds. Perfecting amendments in the Civil Rights Act of 1960 permitted the joinder of States as parties defendant, gave the Attorney General access to local voting records, and authorized courts to register voters in areas of systematic discrimination.Title I of the Civil Rights Act of 1964 expedited the hearing of voting cases before three-judge courts and outlawed some of the tactics used to disqualify Negroes from voting in federal elections.
Despite the earnest efforts of the Justice Department and of many federal judges, these new laws have done little to cure the problem of voting discrimination. According to estimates by the Attorney General during hearings on the Act, registration of voting-age Negroes in Alabama rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only from 4.4% to 6.4% between 1954 and 1964. In each instance, registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration.
The previous legislation has proved ineffective for a number of reasons. Voting suits are unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceedings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local officials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls. The provision of the 1960 law authorizing registration by federal officers has had little impact on local maladministration because of its procedural complexities.
During the hearings and debates on the Act, Selma, Alabama, was repeatedly referred to as the pre-eminent example of the ineffectiveness of existing legislation. In Dallas County, of which Selma is the seat, there were four years of litigation by the Justice Department and two findings by the federal courts of widespread voting discrimination. Yet in those four years, Negro registration rose only from 156 to 383, although there are approximately 15,000 Negroes of voting age in the county. Any possibility that these figures were attributable to political apathy was dispelled by the protest demonstrations in Selma in the early months of 1965. The House Committee on the Judiciary summed up the reaction of Congress to these developments in the following words:
“The litigation in Dallas County took more than 4 years to open the door to the exercise of constitutional rights conferred almost a century ago. The problem on a national scale is that the difficulties experienced in suits in Dallas County have been encountered over and over again under existing voting laws. Four years is too long. The burden is too heavy — the wrong to our citizens is too serious — the damage to our national conscience is too great not to adopt more effective measures than exist today.
“Such is the essential justification for the pending bill.” House Report 11.
II.
The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting. The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant. Section 4 (a)-(d) lays down a formula defining the States and political subdivisions to which these new remedies apply. The first of the remedies, contained in § 4 (a), is the suspension of literacy tests and similar voting qualifications for a period of five years from the last occurrence of substantial voting discrimination. Section 5 prescribes a second remedy, the suspension of all new voting regulations pending review by federal authorities to determine whether their use would perpetuate voting discrimination. The third remedy, covered in §§ 6 (b), 7, 9, and 13 (a), is the assignment of federal examiners on certification by the Attorney General to list qualified applicants who are thereafter entitled to vote in all elections.
Other provisions of the Act prescribe subsidiary cures for persistent voting discrimination. Section 8 authorizes the appointment of federal poll-watchers in places to which federal examiners have already been assigned. Section 10 (d) excuses those made eligible to vote in sections of the country covered by § 4 (b) of the Act from paying accumulated past poll taxes for state and local elections. Section 12 (e) provides for balloting by persons denied access to the polls in areas where federal examiners have been appointed.
The remaining remedial portions of the Act are aimed at voting discrimination in any area of the country where it may occur. Section 2 broadly prohibits the use of voting rules to abridge exercise of the franchise on racial grounds. Sections 3, 6 (a), and 13 (b) strengthen existing procedures for attacking voting discrimination by means of litigation. Section 4 (e) excuses citizens educated in American schools conducted in a foreign language from passing English-language literacy tests. Section 10 (a)-(c) facilitates constitutional litigation challenging the imposition of all poll taxes for state and local elections. Sections 11 and 12 (a)-(d) authorize civil and criminal sanctions against interference with the exercise of rights guaranteed by the Act.
At the outset, we emphasize that only some of the many portions of the Act are properly before us. South Carolina has not challenged §§ 2, 3, 4 (e), 6 (a), 8, 10, 12 (d) and (e), 13 (b), and other miscellaneous provisions having nothing to do with this lawsuit. Judicial review of these sections must await subsequent litigation. In addition, we find that South Carolina’s attack on §§ 11 and 12 (a)-(c) is premature. No person has yet been subjected to, or even threatened with, the criminal sanctions which these sections of the Act authorize. See United States v. Baines, 362 U. S. 17, 20-24. Consequently, the only sections of the Act to be reviewed at this time are §§ 4 (a)-(d), 5, 6 (b), 7, 9, 13 (a), and certain procedural portions of § 14, all of which are presently in actual operation in South Carolina. We turn now to a detailed description of these provisions and their present status.
Coverage formula.
The remedial sections of the Act assailed by South Carolina automatically apply to any State; or to any separate political subdivision such as a county or parish, for which two findings have been made: (1) the Attorney General has determined that on November 1, 1964, it maintained a “test or device,” and (2) the Director of the Census has determined that less than 50% of its voting-age residents were registered on November 1,1964, or voted in the presidential election of November 1964. These findings are not reviewable in any court and are final upon publication in the Federal Register. § 4 (b). As used throughout the Act, the phrase “test or device” means any requirement that a registrant or voter must “(1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” § 4 (c).
Statutory coverage of a State or political subdivision under § 4 (b) is terminated if the area obtains a declaratory judgment from the District Court for the District of Columbia, determining that tests and devices have not been used during the preceding five years to abridge the franchise on racial grounds. The Attorney General shall consent to entry of the judgment if he has no reason to believe that the facts are otherwise. §4 (a). For the purposes of this section, tests and devices are not deemed to have been used in a forbidden manner if the incidents of discrimination are few in number and have been promptly corrected, if their continuing effects have been abated, and if they are unlikely to recur in the future. § 4 (d). On the other hand, no area may obtain a declaratory judgment for five years after the final decision of a federal court (other than the denial of a judgment under this section of the Act), determining that discrimination through the use of tests or devices has occurred anywhere in the State or political subdivision. These declaratory judgment actions are to be heard by a three-judge panel, with direct appeal to this Court. §4 (a).
South Carolina was brought within the coverage formula of the Act on August 7, 1965, pursuant to appropriate administrative determinations which have not been challenged in this proceeding. On the same day, coverage was also extended to Alabama, Alaska, Georgia, Louisiana, Mississippi, Virginia, 26 counties in North Carolina, and one county in Arizona. Two more counties in Arizona, one county in Hawaii, and one county in Idaho were added to the list on November 19, 1965. Thus far Alaska, the three Arizona counties, and the single county in Idaho have asked the District Court for the District of Columbia to grant a declaratory judgment terminating statutory coverage.
Suspension of tests.
In a State or political subdivision covered by § 4 (b) of the Act, no person may be denied the right to vote in any election because of his failure to comply with a “test or device.” §4 (a).
On account of this provision, South Carolina is temporarily barred from enforcing the portion of its voting laws which requires every applicant for registration to show that he:
“Can both read and write any section of [the State] Constitution submitted to [him] by the registration officer or can show that he owns, and has paid all taxes collectible during the previous year on, property in this State assessed at three hundred dollars or more.” S. C. Code Ann. §23-62 (4) (1965 Supp.).
The Attorney General has determined that the property qualification is inseparable from the literacy test, and South Carolina makes no objection to this finding. Similar tests and devices have been temporarily suspended in the other sections of the country listed above.
Review of new rules.
In a State or political subdivision covered by § 4 (b) of the Act, no person may be denied the right to vote in any election because of his failure to comply with a voting qualification or procedure different from those in force on November 1, 1964. This suspension of new rules is terminated, however, under either of the following circumstances: (1) if the area has submitted the rules to the Attorney General, and he has not interposed an objection within 60 days, or (2) if the area has obtained a declaratory judgment from the District Court for the District of Columbia, determining that the rules will not abridge the franchise on racial grounds. These declaratory judgment actions are to be heard by a three-judge panel, with direct appeal to this Court. § 5.
South Carolina altered its voting laws in 1965 to extend the closing hour at polling places from 6 p. m. to 7 p. m. The State has not sought judicial review of this change in the District Court for the District of Columbia, nor has it submitted the new rule to the Attorney General for his scrutiny, although at our hearing the Attorney General announced that he does not challenge the amendment. There are indications in the record that other sections of the country listed above have also altered their voting laws since November 1, 1964.
Federal examiners.
In any political subdivision covered by § 4 (b) of the Act, the Civil Service Commission shall appoint voting examiners whenever the Attorney General certifies either of the following facts: (1) that he has received meritorious written complaints from at least 20 residents alleging that they have
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_respond1_4_2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Edgar T. MOYE, on behalf of himself and all others similarly situated, Appellants, v. The CITY OF RALEIGH, a municipal corporation, et al., Appellees.
No. 73-2515.
United States Court of Appeals, Fourth Circuit.
Argued April 4, 1974.
Decided Oct. 1, 1974.
L. Philip Covington, Garner, N. C., for appellant. ■
Walter Lee Horton, Jr., Raleigh, N. C. (Horton, Conely & Michaels and Broxie J. Nelson, Raleigh, N. C., on brief) for appellees.
Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
BOREMAN, Senior Circuit Judge:
Plaintiff, Edgar T. Moye, brought this class action against the City of Raleigh, North Carolina, all other municipalities in the State of North Carolina, and certain designated municipal officers, seeking injunctive relief, a declaratory judgment, and damages. Moye alleges that he and other persons similarly situated are being deprived of their constitutional rights as a result of the legislative scheme of the defendants in the enactment and enforcement of municipal parking ordinances. The district court dismissed the action, holding that the complaint failed to present a substantial federal question or state a claim for relief.
Under the legislative system here attacked violators of municipal parking ordinances are issued tickets. The recipient of a ticket may pay a “voluntary contribution” of a designated amount between one and five dollars to the municipality and avoid criminal prosecution or, alternatively, withhold payment and face prosecution. Those who are subject to prosecution are tried in a state court, with the right to a jury trial, and if found guilty must pay a fine (equal to the amount of the “voluntary contribution”) and the court costs all of which go to the state unified court system rather than to the municipality. Moye points out that a parking ordinance violator who elects to defend in a criminal trial rather than pay the “voluntary contribution” subjects himself to the possibility of the payment of a greater sum of money and the entry of a criminal conviction on his record. Thus, he contends, this legislative scheme violates due process of law since alleged violators are the subjects of coercion which effectively denies them their right to trial by jury. He further complains that since those who refuse to make the “voluntary contribution” are exposed to a greater monetary penalty (in the form of added court costs) and a record of conviction of a criminal offense, the class of persons exercising their right to trial are denied equal protection of the laws. Finally, Moye asserts that this system of prosecuting parking ordinance violators constitutes a bill of attainder.
The complaint reveals that Moye is presently being subjected to criminal prosecution in state court for alleged packing ordinance violations as a result of his failure or refusal to pay the City of Raleigh the designated amount of “voluntary contributions.” Plaintiff has not alleged or even suggested that his prosecution is being conducted in bad faith or for purposes of harassment.
These facts clearly compel application of the rule announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), whereby federal courts should refrain from interfering with a criminal prosecution pending in state court where the defendant has not shown extraordinary circumstances involving great and immediate threat to federally protected rights which cannot be protected in the defense of the action before the state court. See also Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).
Plaintiff has sought to distinguish Younger by noting that there the plaintiff sought to enjoin the state prosecution itself. While technically what the plaintiff seeks here is an injunction to prevent continued operation of the “voluntary contribution” system, as a practical matter such equitable relief would “result in precisely the same interference with and disruption of state proceedings that the longstanding policy limiting injunctions [against pending state prosecutions] was designed to avoid.” Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971). The principles of equity, comity, and federalism which precluded issuance of a federal injunction against the pending state criminal prosecution in Younger, supra, likewise preclude issuance of such equitable relief in this case. To enjoin the continued operation of the “voluntary contribution” system while a state criminal action is pending would constitute a “disruptive interference with the operation of the state criminal process.” Perez v. Ledesma, 401 U.S. 82, 84, 91 S.Ct. 674, 676, 27 L.Ed.2d 701 (1971). Accordingly, we find no entitlement to the injunctive relief sought.
In addition to injunctive relief, plaintiff seeks a declaratory judgment adjudicating as unconstitutional the system allowing an accused to avoid prosecution for parking violations by making a “voluntary contribution” to the City of Raleigh. “[I]n cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and . . . where an injunction would be impermissible under the'se principles, declaratory relief should ordinarily be denied as well.” Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971). Plaintiff freely admits that he has asserted the unconstitutionality of the “voluntary contribution” system as a defense to his prosecution now pending in state court. A declaratory judgment would, in fact, adjudicate the merits of Moye’s defenses to the state prosecution; such a judgment might then be res judicata and virtually take the case out of state court before it could be heard and decided. Public Service Commission v. Wycoff Co., 344 U.S. 237, 247, 73 S.Ct. 236, 97 L.Ed. 291 (1952); Perez v. Ledesma, 401 U.S. 82, 125, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion of Justice Brennan). It is our conclusion that the issuance of a declaratory judgment would be inappropriate in the instant case and the request therefor should be denied.
Finally we are confronted with the claim for money damages for violation of plaintiff’s civil rights pursuant to 42 U.S.C. §§ 1983 and 1985(3). Plaintiff has not submitted his claim for money damages to the state court and he need not do so in order to invoke the jurisdiction of the federal courts. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Scott v. Vandiver, 476 F.2d 238 (4 Cir. 1973). However, it is clear that he has submitted many of the issues involved in this federal action for money damages to the state court by way of his defense to the pending state criminal prosecution. Judicial economy and the sound exercise of judicial discretion require that federal courts abstain until the state court has had an adequate opportunity to resolve those issues. We recognize that the decision of the state courts on those issues may be res judicata in this civil action. P I Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1 Cir. 1972); Norwood v. Parenteau, 228 F.2d 148 (8 Cir. 1955). But it is the plaintiff who chose to submit those issues to the state court and, having elected to try them there in the first instance, he cannot now be permitted to avoid his decision by initiating this action in federal court while the state action is pending. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); See also Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973).
Ordinarily in such cases we would remand the ease to the district court so that it might retain jurisdiction over the claim for money damages pending the outcome of the state proceeding. However, it appears likely that the outcome of those proceedings will be controlling with respect to many of the issues involved in the claim for money damages and would necessitate extensive revision or amendment of the pleadings. Accordingly, we conclude that the action for damages should be dismissed without prejudice to the right of the plaintiff to institute a new action for damages should he be so advised.
Additionally, we note that a substantial question exists as to whether the complaint properly states a cause of action against the municipalities and their officers under 42 U.S.C. § 1983 and § 1985(3). It would appear that the municipalities designated as defendants in this action are not “persons” subject to suit within the meaning of those sections. Likewise the complaint does not appear to properly state a cause of action against the municipal officers. This jurisdictional issue was not raised in the district court but in the event a new action for. damages is instituted it will be necessary for the district court to fully examine its jurisdiction prior to any consideration of the merits.
For the reasons herein stated we affirm the district court’s dismissal of the action with respect to the plaintiff’s claims for injunctive and declaratory relief but as to the action for damages it is dismissed without prejudice to the plaintiff’s right to institute a new action should he be so advised.
Affirmed in part and the dismissal of the action for damages affirmed as modified.
. There was no determination by the district court as to whether the plaintiff could maintain a class action. Since we conclude that the complaint should be dismissed on grounds which do not require such determination at this time, we intimate no opinion on that question.
. Since only local ordinances were involved it was not necessary to convene a three-judge court to hear the constitutional challenge.' This is true even though similar ordinances existed in numerous municipalities throughout the state. Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967).
. The district court concluded that the bill of attainder argument “is frivolous and involves no substantial federal question.”
. Jurisdiction of the claim for injunctive relief is asserted under 28 U.S.C. § 1343.
. Jurisdiction for the requested declaratory judgment is asserted under 28 U.S.C. §§ 2201 and 2202.
. We recognize that there are instances where a declaratory judgment is appropriate although a simultaneous request for injunc-tive relief must be denied. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). However, the instant case is clearly distinguishable from Steffel since there is here a pending state criminal prosecution. Steffel held that in the absence of a pending state prosecution equity, comity, and federalism do not mandate abstention from the mild relief of a declaratory judgment. However, when state criminal proceedings are pending the Court has promulgated firm rules of abstention which are in addition to the traditional equitable requirements that apply where there are no such proceedings pending. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).
. Jurisdiction of the claim for money damages is asserted under 28 U.S.C. § 1343.
. “Every pei’son who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983.
. “If two or more persons in any State or Territory conspire . . . for the -purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.” 42 U.S.C. § 1985(3).
. It is well established that a municipality is not a “person” within the meaning of 42 U.S.C. § 1983, and therefore cannot be liable under that section in an action for damages [Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)] or injunctive relief [City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973)]. It would appear that municipalities are also immune from suit under 42 U.S.C. § 1985(3). Spampinato v. City of New York, 311 F.2d 439 (2 Cir. 1962), cert. denied, 372 U.S. 980, 83 S.Ct. 1115, 10 L.Ed.2d 144, rehearing denied, 374 U.S. 818, 83 S.Ct. 1699, 10 L.Ed.2d 1042; Agnew v. City of Compton, 239 F.2d 226 (9 Cir. 1957), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910.
. Various municipal officials, including police chiefs, town managers, and members of city councils of all municipalities in North Carolina are designated as defendants in this action. They are sued individually and in their official capacities. There is a substantial question whether these officials can be sued “in their official capacities” and the absence of any allegation that they acted “in bad faith” may preclude proceeding against them as individuals. See Bennett v. Gravelle, 323 F.Supp. 203 (D.Md.1971), aff’d 451 F.2d 1011, petition for cert. dismissed 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692; see also Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Other possible jurisdictional questions would appear to be presented but the record is presently inadequate to warrant consideration thereof.
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)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
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.
Russell Charles TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
No. 11590.
United States Court of Appeals Sixth Circuit.
Oct. 27, 1952.
Milton R. Henry, Pontiac, 'Mich., and Herman D. Stallings, Detroit, Mich., for appellant.
John J. Kane, Jr., Cleveland, Ohio, and Marcus L. Friedman, Toledo, Ohio, for appellee.
Before MARTIN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The above cause coming on to be heard on the transcript of record, the 'briefs of the parties, and the argument of counsel iti open court; and it appearing that there was no error in the ■ admission of evidence or any rulings thereon by the trial court;’ and that the conviction of appellant was sustained iby • the evidence;
And it appearing further that the District Court was not in error and did not-abuse its discretion in refusing to sentence appellant in accordance with the provisions of Title 18 U.S.C.A. § 5010, known as the Youth Offenders Act; and the court being duly advised;
Now, therefore, it is ordered, that the judgment of the District Court be and is hereby 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_appnatpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
Mason K. KNUCKLES and Bernice A. Knuckles, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 7846.
United States Court of Appeals Tenth Circuit.
Aug. 17, 1965.
William R. Bagby, Lexington, Ky., for petitioners.
Anthony Z. Roisman, Atty., Dept, of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept, of Justice, on the brief), for respondent.
Before PHILLIPS, LEWIS and HILL, Circuit Judges.
HILL, Circuit Judge.
Petitioners, husband and wife,- by this petition for review seek to reverse a decision of the Tax Court sustaining a deficiency income tax assessment for the year 1959 in the amount of $9,081.00.
On March 25, 1957, petitioner Mason K. Knuckles entered into an employment contract, effective as of November 1, 1956, with the Perpetual Life Insurance Company (hereafter referred to as Perpetual) located in Denver, Colorado. The contract employed him in an executive capacity for a period of five years and he was to receive a salary of not less than $20,597.50 per year at the monthly rate of $1,716.45. In addition, he was to receive, or in event of his death his wife or estate would receive, the sum of $225.31 per month from the time he reaches age 65 until his death or the expiration of ten years whichever is longer. This pension or retirement payment by the company was funded with a $50,000 ten-pay life insurance policy on the life of petitioner which required the company to pay a $4,402.50 premium each year. Perpetual was the beneficiary of this policy and had all the incidents of ownership therein. So far as is here material, the contract of employment also provided that the petitioner’s employment may be terminated by a majority of Perpetual’s board of directors although the salary was to continue for the five year period. Furthermore, if his employment was terminated by the board of directors, Perpetual was to continue payments into the insurance fund and the policy was to be kept in effect until November, 1961.
In 1958, the board of directors of Perpetual reached the conclusion that Knuckles had mismanaged the affairs of the company to the extent that its continued existence was imperiled. Some of the directors attempted, without success, to procure Knuckles’ resignation. Finally, on December 1, 1958, the board, by formal resolution, terminated the contract of employment on the ground that Knuckles was incompetent to manage the affairs of the company. Knuckles denied his incompetency and refused to accede to the board’s resolution. On March 4, 1959, Knuckles commenced a suit upon his contract of employment against Perpetual with the summons stating in part that the action was brought to recover “the amount of $73,282.00 for Defendant’s breach of its March 25, 1957 employment contract with Plaintiff.” The filing of a complaint in the case was delayed by agreement between the parties pending the taking of depositions of several members of Perpetual’s board of directors. During this time settlement negotiations between the parties were in progress. At all times pertinent Knuckles was deeply concerned about the effect of the controversy upon his future ability to obtain employment and insisted that any settlement made vindicate him in the eyes of the public. On May 20, the board of directors of Perpetual, by formal motion, accepted Knuckles’ offer of settlement, which included a cash payment to Knuckles in the amount of $20,000 and an agreement by Perpetual to pay the eight remaining annual premiums on the life insurance policy included in the employment contract. The attorney for Perpetual was authorized to effectuate the settlement by proper legal instruments.
During the course of the settlement negotiations Knuckles became emotionally disturbed and believed that his health had been impaired because of the pending controversy. In May, counsel for Knuckles first suggested that Perpetual permit recovery on the basis of a tort claim for personal injury because of the tax advantage to his client. Perpetual, at this time and during all of the negotiations, refused to recognize any liability in tort on its part to Knuckles.
The settlement agreement, as outlined by Perpetual's board of directors’ motion of May 20, was finalized by formal agreement dated July 15. Between these dates negotiations between counsel were carried on in an effort to arrive at a solution of the problem posed by Knuckles insistence upon the settlement being based on his claimed personal injuries and Perpetual’s vehement denial of any liability because of personal injuries. Perpetual also refused to permit an allocation, by the settlement agreement, of the amount to be paid for Knuckles’ tax advantage. However, Knuckles was finally permitted to institute a suit based upon Perpetual’s liability for personal injury and then to dismiss the suit with prejudice. Perpetual also, by agreement with Knuckles, removed from its records the resolution of December 1, terminating Knuckles’ contract for the reasons stated and replaced it with a resolution merely terminating the contract but without stating the reasons.
The Tax Court, after making particular findings of fact, made the ultimate finding that the “Amounts paid to or in behalf of petitioner in pursuance of his settlement agreement with Perpetual represented in part compensation due him under a contract of employment and in part damages due him for injury to his business reputation.” In accord therewith the deficiency in income tax for 1959 in the amount of $9,081.00, as assessed by the Commissioner, was sustained.
The sole question is whether the amount of money received by taxpayer, Mason K. Knuckles, in settlement of a claim against his former employer was money received as damages for personal injuries and hence not includible in income under section 104(a) of the Internal Revenue Code (26 U.S.C.A. § 104(a).
Section 61(a) of the Internal Revenue Code provides: “Except as otherwise provided in this subtitle, gross income means all income from whatever source derived * * Section 104(a)
specifies that:
“Except in the case of amounts attributable to (and not .in excess of) deductions allowed'under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include—
(2) the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness; * *
We observe at the outset that this is purely a fact case and that we cannot overturn the findings of fact made by the Tax Court unless we are able to conclude that they are clearly erroneous. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Anson v. C. I. R., 10 Cir., 328 F.2d 703.
We agree with respondent that unless the payments made to the taxpayer were “received * * * on account of personal injuries” the amount paid is includible in his gross income. The most important fact in making that determination, in the absence of an express personal injury settlement agreement, is the intent of the payor as to the purpose in making the payment. Agar v. C. I. R., 2d Cir., 290 F.2d 283. In this connection, the evidence shows that Perpetual .did not, at any time, acknowledge any possible liability for personal injuries to Knuckles and in fact consistently denied any such liability. No proof was ever presented to Perpetual of the existence of any personal injuries from which it could evaluate a proper settlement. The Tax Court expressly found that the settlement payment was made by Perpetual because “the board felt settlement with petitioner had to be effectuated because the publicity incident to a trial of petitioner’s claims would * * * endanger the continued existence of Perpetual.” This important finding has full support in the testimony of the attorney for Perpetual as well as in the minutes of Perpetual’s board of directors.
Other important findings by the Tax Court that have ample supporting evidence are: “Petitioner’s primary purpose in instituting suit against Perpetual was to collect amounts due him under his employment contractthat Knuckles became “increasingly concerned with his inability to obtain employment in the insurance field and with the fact that he no longer enjoyed his former good reputation in his community;” that Knuckles consistently “refused to make any settlement except under such basis that he would be vindicated ‘in the eyes of the public and the insurance world; ’ ” that no mention of any claim for personal injuries was made by petitioner’s counsel until May, 1959, which was about the same time as a settlement figure had been agreed upon and was over two months after the suit on the employment contract was instituted; petitioner’s counsel, at that time, mentioned his client’s tax advantage, if the settlement was based on personal injuries; Perpetual, at the time of settlement, refused to make any allocation of the agreed settlement amount solely for petitioner’s tax advantage; and “that the amounts paid petitioner * * * were to release that company from any possible liability under its employment contract and that petitioner’s insistence upon settlement based on a tort claim for personal injury was an afterthought brought into being by the possible tax advantage which might result.”
After a careful consideration of the record before us, we must conclude that the Tax Court’s findings of fact are supported by the evidence. It is true that petitioner’s contention finds some support in his own testimony and the testimony of his two attorneys but the Tax Court also had the testimony of Perpetual’s attorney. His testimony together with the exhibits received in evidence .in the case constitutes sufficient evidence to support the findings.
The decision of the Tax Court is affirmed.
. Bernice Knuckles is a party here by virtue of having filed a joint return for the tax year 1959 with her spouse.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genapel1
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
MEYERS v. UNITED STATES and three other cases.
Circuit Court of Appeals, Third Circuit.
November 20, 1929.
Rehearing Denied December 26, 1929.
Nos. 4088-4091.
John M. Henry and Arthur F. Schmidt, both of Pittsburgh, Pa., for appellants.
John D. Meyer, U. S. Atty., and Jos. A. Richardson and Ralph H. Smith, Asst. U. S. Attys., all of Pittsburgh, Pa.
Before BUFFINGTON, WOOLLEY and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
The defendants-appellants were convicted under one of several indictments drawn to conform to the court’s finding in United States v. Abbott, stated and discussed in United States v. Wills et al., 36 F.(2d) 855, where the government alleged and tried to prove one large comprehensive conspiracy entered into by seventy-three persons to violate the National Prohibition Act in the City of Pittsburgh but proved instead several small conspiracies embracing groups of the same defendants. The. indictment with which we are presently concerned was directed against a • group of thirty-five persons, defendants in the Abbott Case, who by its four counts were charged with conspiracy to sell, manufacture, possess and transport intoxicating liquor in violation of the law. When the case came on for trial the government found itself still confronted by some of the practical and legal difficulties which it encountered in the trial of the Abbott Case. In a further effort to conform its action to the decision in that ease, the government, for want of sufficient evidence, entered a nolle prosequi as to eleven defendants and yielded to a plea in bar filed by another defendant. At the close of the case the court, on motions both by the government and certain defendants, directed verdicts of acquittal as to nine others. Finally the case was submitted as to seven defendants and the jury, by their verdict, found two not guilty and five guilty, including the four defendants here on appeal.
In the course of the trial the evidence of many witnesses proved, as the appellants themselves admit, that they had been extensively engaged in the sale of liquor over that portion of Pittsburgh known as the “South Side,” but they point out that the offenses charged against them were conspiracies to violate the aet, not violations of the act itself, and urge that the conspiracies charged by this indictment, though purporting to be one of the small group conspiracies revealed in the Abbott Case, were not proved, but that, as in the Abbott Case, the government proved several still smaller and wholly unrelated conspiracies and therefore, under the law of the Abbott Case, United States v. McConnell (D. C.) 285 F. 164; Wyatt v. United States (C. C. A. 3d) 23 F.(2d) 791; and Coco v. United States (C. C. A.) 289 F. 33, the convictions cannot be sustained.
There is no question about the law. The only question is whether it applies to the facts. What happened was this:
Taking as an example the count charging conspiracy to sell, and for convenience speaking of the conspiracies in the singular number, the allegations of the conspiracy were in the usual form, supplemented by a recital of overt acts specifying the parts whieh in some measure the several defendants played in the conspiracy. Keeping in mind that the essence of a conspiracy such as this is the unlawful agreement to violate a law, not its actual violation, and that the overt act required by section 37 of the Criminal Code (18 USCA § 88) and additional overt acts when pleaded are not parts of the crime, it may be that the overt acts stated in this ease did not tell the whole story of the conspiracy; nor did they have to, for it is certain the government was not restricted to them in proving the conspiracy if properly pleaded in the indictment. Nor, it may be, did they tell the story with accuracy in details. The government was not required to prove the conspiracy precisely as indicated by all of the overt acts stated. Infirmity in one act did not nullify the strength of all others. It was of course bound to prove the conspiracy as pleaded, and as pleaded with at least one overt act. Certainly it could prove acts in addition to those stated and omit to prove some which were stated if still it proved the conspiracy alleged in the count, supported, as it must be, by a statement of one or more overt acts which implicated and connected the several conspirators.
It developed early in the trial that the conspiracy centered on the three Meyers and Swift. There can be no doubt that the government tightly proved the complete conspiracy between them. In doing so, however, it failed to connect some of the other defendants with them, for lack of evidence, or because of the nolle prosequi entered, plea in bar granted and directed verdicts of acquittal rendered as to others — all done without an objection by any defendant. These appellants now say that the government’s failure to connect the other defendants with them was fatal because the change in the personnel and number of defendants, thus effected, amounted to an amendment to the indictment — in transitu, as it were — without the intervention of a grand jury. Eor reasons too plain to discuss we find no merit in this contention. Nor do we find that the appellants can escape conviction for the conspiracy whieh was proved as to them because the government failed to connect with them the other defendants who dropped out of the case in one way or another. It is evident that here, as in.the Abbott Case, the government tried to prove too much and failed in its effort to connect every defendant with every other defendant but it did not fail to prove the Meyers brothers and Swift guilty of the conspiracy charged. In other words, the fabric of the conspiracy frayed out at the edges but the body remained. While we have followed the wanderings of the evidence in the light of the appellants’ argument, we shall not repeat or discuss them here. We shall do no more than hold that this is not the Abbott Case where one conspiracy was charged and others proved, but is a case where one conspiracy was charged and, as to certain defendants, proved and as to others not proved. There was, therefore, no variance, United States v. Wills, 36 F.(2d) 855; there was a mere failure of proof as to related complicity of certain defendants with the defendants who were convicted upon the charge against them. The ease therefore falls outside the law which the appellants have invoked and to whieh we adverted at the beginning of this discussion.
The next question — “whether the government may produce evidence not set forth in its Bill of Particulars” — seemed serious until it was discovered that there was no bill of particulars within the legal meaning of that term.
Before trial, sixteen of the defendants, including the appellants, filed petitions, each of which was entitled “Petition for Bill of Particulars” and concluded with a prayer that the court “require the United States Attorney to give a more particular description, in the nature of specifications or a Bill of Particulars, of the acts upon which he intends to rely.” Pursuant to the court’s order to that effect the government filed a long and elaborate statement involving many persons and touching many acts whieh it entitled “Bill of Particulars” but whieh is more accurately described by the opening sentence, as follows: The United States Attorney, “in compliance with the order of court entered in the above entitled ease, * * * amplifies with particularity the overt acts of the indictment so far as the facts are at the 'time of the filing hereof known.” The paper is what it described itself to be — an amplification of the overt acts. The facts it státes are but additional overt aets and are accorded no greater legal effect and fall under no different rule of evidence than if they had ,been first stated in the indictment. What we have said in respect to the proof of overt aets stated in or omitted from an indictment applies equally to overt aets brought into the ease in this way.
The appellants’ next contention — one to which we haye given serious thought — is as follows:
“Whether the United States may introduce evidence of transactions subsequent to the date^ of the finding of the indictment, the time of the conspiracy pleaded in said indictment being between September 1, 1925, and the date of finding the indictment, June 9, 1928, when it also appears that a bill of particulars had been filed and the particular acts set forth were confined to this period, and it further appears that the testimony is introduced from witnesses whose names axe not set forth in the bill of particulars.’’
. Having regarded the so-called bill of particulars merely a? an amplification of the overt aets of the indictment and having stated the rule of evidence applicable to overt aets, our answer to the question which the appellants have raised will be restricted to that part which inquires “whether the United States may introduce evidence of transactions subsequent to the date of the finding of the indictment.”
Ia this connection dates are pertinent. The counts charge conspiracies continuing from September 1, 1925, to the date of finding the indictment which was June 9, 1928. The trial began on February 25 and closed on February 28, 1929.
The witness Buziko, having discontinued the business of butcher, equipped and opened a bar room. His testimony on the point in issue was as follows:
“Q. During 1926, ’27, ’28, did you sell any liquor at the bar? A. Yes, sir.
“Q. What kind ? A. Moonshine. - * * *
“Q. Front whom did you buy your moonshine? A. Meyers. * * *
“Q. How many months did you buy from Meyers? A. Well, I ran it about six months before I ever started to sell moonshine. Then I started with Meyers and kept on with Meyers. * * *
“Q. Now what business did you have with Miekey (Meyers) in connection with this? A. Miekey delivered and collected. * * *
“Q. How did you first come to do business with Mickey? A. Jimmy Swift took me. * * *
“Q. “When Jimmy Swift came to your place what did he say to you? A. I should buy stuff off of Meyers.
“Q. Well, why — Did you ask him? A. I said I did not have to buy off anybody, and he said that everything would be O. K., and I started to sell. * * *
“Q. After Jimmy told you it would be all right to buy it from them, what else happened before you got the delivery? A. Then I got the delivery. * * *
“Q. To whom did you give your order? A. Well, Jimmy sent up two cans after that.
“Q. And who collected for the first two cans? A. Miekey delivered and Mickey collected. * * *
“Q. Then after you first started to do business with Mickey did you deaf with him regular? A. Yes, sir.
“Q. How long did you continue to do business with them? A. With them?
“Q. Yes, with Meyers? A. Oh, pretty near every week.
“Q. And when was the last time you bought any from Meyers? A. About three weeks ago.
“Q. That is what month? A. February, I believe — first part of February. * * * “Q. Did anybody ever collect from you besides Miekey? A. No, sir.”
The witness Nitoski, who kept a restaurant on the “South Side,” testified as follows:
“Q. During 1926, ’27, and ’28, did you sell any liquor at your restaurant? A. Yes. # * 4*
“Q. After you stopped with Butseh, from whom did you buy next? A. I started to buy from Miekey.
“Q. From whom? A. From Mickey Meyers.
“Q. When was it you started to buy from Miekey Meyers? A. One time he came up to my place, if I needed any moonshine, and I said yes, and that is the way we started to deal. * * *
“Q. Who collected for the stuff you ordered from Miekey? A. Miekey. * * *
“Q. When was the last time you bought any stuff from Mickey? A. Oh, before— maybe four months ago, or five months ago.
“Q. Was that before Christmas or after Christmas ? A. About six months ago, since I got that subpoena, I quit, I didn’t get—
“Mr. Coll: Wait a minute, I object to proof of any sales or acts after the finding of the bill of indictment.
“The Court: What can you say about
sales after the finding of the indictment, Mr. Smith ?
“Mr. Smith: If competent at all, your Honor, it is competent to prove guilty knowledge and continuing of the system. (Objection overruled. Exception noted to defendants.)
“Q. When was the last time? A. Since I got that first subpoena, I from that time quit.
“Q. I didn’t get that? A. Since I got that first subpoena, last Jwne.
“Q. Did you buy any after that? A. No.”
The witness Saling, long a bartender for others, opened his own bar in December, 1928. He was promptly raided. He was then told by a policeman (Coyne) that if he wanted to do business he would have to buy liquor from Meyers. Jimmy Swift called upon him and put him in touch with Meyers from whom, thereafter, he made weekly purchases, the liquor being delivered by unknown persons and collections made by Mickey and Sam Meyers. The objectionable testimony follows:
“Q. And when was the last time you got a delivery of either moon or good stuff from Meyers? A. The last time — You mean moonshine?
“Q. Yes. When was the last time you got any moonshine from them? A. Last week.
“Q. What? A. Last week.
“Q. What day? A. That was Tuesday.
“Mr. Coll: That is objected to, if your Honor please — anything after the time of the indictment.
“Mr. Smith: It is being offered on the part of the government as. being competent to prove guilty knowledge, system, motive and intent.
“The Court:” You mean, coming from the same place?
“Mr. Smith: Yes. (Objectionoverruled, exception noted to defendants.)
“Q. How much did you get last Tuesday? A. One can.
“Q. Has it been collected for? A. Yes.
“Q. Who collected for it? A. One of the Meyers.
“Q. Which one? A. One of the brothers (identifying Samuel Meyers). * * *
“Q. Now from the date when you first bought from Meyers until last Tuesday have you dealt with them regular? A. Yes.
Q. And about how often would you get a delivery of moonshine? A. Once a week.”
Whether or not the admission of evidence of sales subsequent to the indictment was error justifying reversal because prejudicial depends upon a variety of circumstances, the first of which is the effect of the evidence in proof of the crime alleged. Had the crime alleged been a violation of the National Prohibition Act by unlawful sale, the admission of evidence of sale after the indictment to prove violation of the act by sale before indictment would have been plain error, fundamental, prejudicial, reversible. Thompson v. United States (C. C. A. 3d) 283 F. 895, 898; Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 42 L. Ed. 1162; Commonwealth v. Nailor, 29 Pa. Super. Ct. 271, 273; 31 C. J. 841, 843. But the crime here alleged was conspiracy to violate the law. The act of conspiring — agreeing, combining, breathing together in a common design — being the essence of the crime, must be proved to have been done and completed within the time pleaded in the indictment. This the government did in the case at bar by evidence which in itself was more than enough and was not contradicted. Though this evidence alone compelled conviction, the government went further in the three instances named and proved not that the appellants entered into the conspiracy after the finding of the indictment but that after the indictment they sold liquor. We are not convinced that the government’s attorney, at first brought out this post-indictment testimony purposely, for it came out in answer to a perfectly proper question — “When was the last time you bought any (liquor) from Meyers?” — and Ihe answer seemed to surprise him. As the question was first asked and answered without objection, the United States Attorney, seemingly encouraged to push the inquiry, twice repeated the question to other witnesses. This, if not technical error, was unwise. Moreover 'the grounds on which the United States Attorney offered and the court admitted the testimony in the last two instances are not sound. They are:
“If competent at all, your Honor, it is competent to prove guilty knowledge and continuing of the system.”
“It is being offered on the part of the government as being competent to prove guilty knowledge, system, motive and intent.”
Therefore there remains the question whether the admission of this testimony of three witnesses, in each instance technical error, was prejudicial, for it is only on prejudicial error that reversal is warranted.
Buzdko, the first witness, had been regulaxly buying liquor from Meyers for two years before the indictment was found. To Buziko’s testimony that lie had bought liquor from Meyers “about three weeks ago,” that is,- between the indictment and trial, the appellants interposed no objection nor did they contradict it, move to strike it out, or, in presenting their points, ask the court to charge the jury 'in respect to it. The admission of evidence, without objection at the time or motion to exclude it later, is not reviewable. McIntosh v. United States (C. C. A.) 1 F.(2d) 427, 429; Allen v. United States (C. G. A.) 4 F.(2d) 688, 694.
The next witness was Nitoski. While objection to his testimony of sales between indictment and trial was seasonably made, Nitoski was uncertain about his dates. He first said, that his last purchase was four or five months ago, that is, within the period between indictment and trial. He then extended it back six months which brought it to August, two months after the indictment was found; and finally he said that since he got the first subpoena “last June” he quit. The indictment was found in June. As there was no evidence of when (after indictment) the subpoena was issued and served and as there was evidence that immediately before the subpoena was issued his purchases were made weekly, it follows there was no evidence from which the jury could have found that the witness purchased liquor from Meyers after the return of the indictment. Moreover, in the event of a gap of a few days in this comparison of dates, it appears from Nitoski’s testimony that he had been making weekly purchases of liquor from Meyers for more than a year before the indictment. As this testimony of continuous pre-indictment purchases and sales was not contradicted it proved a part of the Meyers conspiracy so completely that evidence of any sales made subsequently to the indictment could not have been prejudicial.
There is no doubt that Saling, the third witness, testified over objection that Mickey Meyers began selling him liquor, and that he and Samuel Meyers collected for it, after the indictment was found. If this had been the only testimony of an overt act in support of the charge of conspiracy, or if it had been a small yet relatively important part of the testimony of overt acts in proof of the conspiracy, or if it had been regarded by the defendants of sufficient importance to provoke contradiction and thus became an ingredient in a controverted issue of fact, Saling’s testimony might conceivably have raised a prejudice. But other testimony of conspiracy directed to these appellants concerning acts done before the indictment was such as to compel conviction wholly without regard to the acts concerning which Saling testified. The overt acts testified to by others were in number and character such as make the Saling sales insignificant. The other evidence standing uncontradieted was so strong and convincing that we cannot see how additional sales to this one customer could have influenced the jury or affected their verdict, Whitaker v. United States (C. C. A.) 5 F.(2d) 546, 548, or, in view of the record, how the appellants could have been prejudiced. Landfield v. United States (C. C. A.) 9 F.(2d) 315, 316.
During the trial the government started to prove what prohibition agents "had found in a raid which they made on June 13, 1928, upon premises in the South Side of Pittsburgh. When its attention was called to the fact that the search had already been declared illegal, the government moved to strike out all the 'testimony on the subject. As the court granted the motion and thereby sustained the appellants’ objection and as no exception was, or could have been, noted, there is, we think, nothing to review except, as the appellants urge, the general effeet of the transaction upon the jury. This was not prejudicial.
Finding no prejudicial error in the record and no infirmity in the sentences imposed upon Mickey Meyers and G-us Meyers in view of their conviction upon more than one count and for more than one conspiracy, the judgments are affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_genresp1
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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.
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.
EAC TIMBERLANE, etc., et al., Plaintiffs, Appellants, v. PISCES, LTD., et al., Defendants, Appellees.
No. 83-1555.
United States Court of Appeals, First Circuit.
Argued Feb. 7, 1984.
Decided Sept. 28, 1984.
George F. Chandler III, New York City, with whom Antonio M. Bird Jr., San Juan, P.R., Hill, Rivkins, Carey, Loesberg, O’Brien & Mulroy, New York City, and Bird & Bird, San Juan, P.R., were on brief, for plaintiffs, appellants.
Jose Antonio Fuste, Hato Rey, P.R., with whom J. Ramon Rivera Morales, and Jimenez & Fuste, Hato Rey, P.R., were on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, WISDOM, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Fifth Circuit, sitting by designation.
WISDOM, Senior Circuit Judge.
This action in admiralty raises the question of the applicability of the Limitation of Liability Act (Limitations Act), 46 U.S.C. §§ 181-189 (1982), of the Carriage of Goods by Sea Act (COGSA), id. §§ 1300-1315, and of principles of general maritime law in determining the liability of a vessel’s owners, charterers, and operators for cargo lost when the vessel carrying the cargo exploded and sank on the high seas. The district court found that the shipowners, charterers, and operators had not contributed either by negligent act or by omission to the explosion that sank the vessel. The court therefore held that the defendants were not liable to the cargo owners for the loss. We agree with the district court that all defendants have shown freedom from fault in connection with the loss under any applicable rule of law. We affirm.
I. FACTS
On January 25, 1978, the M/V Eva Maria sank with all cargo on board. The loss of the vessel and her cargo was caused by the explosion of a load of detonator caps in the number two ’tween deck of the ship Various cargo interests brought this action under COGSA and under general maritime law, seeking recovery from Pisces, Ltd. (Pisces), the vessel’s owner; Transportation Marítima Mexicana, S.A. (TMM), the vessel’s time charterer and the parent corporation of Pisces; Laeisz Maritime Trading Co., Ltd. (Laeisz), a contracting firm engaged by Pisces to manage and operate the vessel; and United Kingdom Mutual Steam Ship Owners Assurance Association (Bermuda) Ltd., defendants’ insurer. Pisces and TMM then petitioned for exoneration from or limitation of liability under the Limitations Act. Id. §§ 181-189. These actions were consolidated and tried in the district court without a jury.
The trial judge found that the defendants had shown by a preponderance of the evidence that the loss was occasioned not by any actions or omissions of the defendants, but by the spontaneous heating and combustion of the organic packing material surrounding the detonator caps. The district court rejected the plaintiffs’ contention that the defendants should be held strictly liable for the loss as carriers transporting dangerous goods. The court instead analyzed the question of liability under COGSA, stating that “[t]he issues in these proceedings fall squarely upon determining whether defendant-petitioners’ relationship to the cause of the explosion is one that, according to the standards of diligence imposed on carriers by COGSA, requires that they be found liable to the cargo interests”. EAC Timberlane v. Pisces, Ltd., 1983, D. Puerto Rico, 580 F.Supp. 99, 113.
In its thorough and well-reasoned opinion, the district court reviewed the several bases upon which the defendants claimed exoneration from liability. The court first examined the Fire Statute defense of the Limitations Act and the COGSA fire exemption. The court concluded that the defendants had proved that fire destroyed the cargo and that the fire was caused without their actual fault or privity and were, therefore, exonerated from liability under those statutes. EAC Timberlane, 580 F.Supp. at 117. The court then looked to COGSA’s “catch-all” or “q clause” exemption, which exonerates a COGSA carrier and the ship from loss resulting from
“... [a]ny other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the earner, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage”.
46 U.S.C. § 1304(2)(q) (1982). The district court found that the defendants had “demonstrated by a preponderance of the evidence that they provided a seaworthy vessel and that they were free from fault regarding the cause of the damage”. The court concluded that “the defendant-petitioners carried their burden complying with the highest standards imposed by COGSA and the general admiralty law”. EAC Timberlane, 580 F.Supp. at 118. The court, therefore, found it unnecessary to determine specifically whether defendants would also be exonerated under other statutory exemptions from liability or under general maritime law.
On appeal, the cargo interests contend that the district court’s opinion is predicated upon the application of incorrect legal standards in that it exonerates all defendants from liability under the COGSA q clause exemption. The plaintiffs assert that COGSA is not applicable to all of the defendants, and that the erroneous application of the q clause exemption to those defendants not within COGSA requires reversal as a matter of law. The plaintiffs also contend that the trial judge’s finding that each defendant had proved freedom from fault in connection with the loss was clearly erroneous. We, however, agree with the district court’s conclusion that the COGSA q clause contains the most stringent test for exoneration from liability for cargo loss and that a defendant who has met the burden established by the q clause necessarily has established freedom from fault under general maritime law as well. Further, we cannot say, upon a review of the entire record, that we are “left with the definite and firm conviction that a mistake has been committed”. United States v. U.S. Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. Accordingly, we affirm the decision of the district court.
II. APPLICABLE LAW
The parties agree that the liability of the various defendants is governed by the Limitations Act, by COGSA, or by general maritime law. The parties disagree, however, as to which theory of liability is applicable to which defendants, and as to the correct standard of liability under general maritime law. It is undisputed that TMM, as charterer of the vessel and issuer of the bill of lading for the lost cargo, is a COGSA carrier. Its liability therefore is properly determined under the applicable COGSA exemptions. It is also undisputed that the liability of Laeisz is properly determined under general maritime law. The proper standard of liability as to Pisces, owner of the M/Y Eva Maria, is, however, in dispute. Pisces contends that there is privity of contract between it and TMM, so as to place Pisces within the definition of a COG-SA “carrier”. The plaintiffs allege that Pisces is not a COGSA carrier and that its liability to the cargo interests must be assessed under the Limitations Act and under general maritime law. Plaintiffs further allege that under maritime tort theories Pisces and Laeisz should be held strictly liable for the loss.
A. COGSA
By its terms, COGSA applies “to all contracts for carriage of goods by sea to or from ports in the United States in foreign trade”. 46 U.S.C. § 1312 (1982). The term “contract of carriage” includes only those “contracts of carriage covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or document of title regulates the relations between a carrier and a holder of the same.” Id. § 1301(b). COGSA expressly does not apply to charter parties, except that bills of lading issued under charter party agreements must conform to the terms of COGSA. Id. § 1305; see also Yeramex International v. S.S. Tendo, 4 Cir.1979, 595 F.2d 943, 946. Thus, COGSA is applicable to a shipowner that has chartered its vessel to a COGSA carrier only when the shipowner has entered into a contract of carriage with the shipper or has some privity of contract with the shipper. In re Intercontinental Properties Management, S.A., 4 Cir.1979, 604 F.2d 254, 258.
As noted by the Fourth Circuit, “[a] contract of carriage with an owner may either be direct between the parties, or by virtue of a charterer’s authority to bind the owner by signing bills of lading ‘for the master’.” Intercontinental Properties Management, 604 F.2d at 258 n. 3. Generally, when a bill of lading is signed by the charterer or its agent “for the master” with the authority of the shipowner, this binds the shipowner and places the shipowner within the provisions of COGSA. E.g., Gans S.S. Line v. Wilhelmsen (The Themis), 2 Cir.1921, 275 F. 254, 262; Tube Products of India v. S.S. Rio Grande, 1971, S.D.N.Y., 334 F.Supp. 1039, 1041; see generally Bauer, Responsibilities of Owner and Charterer to Third Parties — Consequences under Time and Voyage Charters, 49 Tul.L.Rev. 995, 997-1001 (1975). When, however, a bill of lading is signed by the charterer or its agent “for the master” but without the authority of the shipowner, the shipowner is not personally bound and does not by virtue of the charterer’s signature become a COGSA carrier. E.g., Associated Metals and Minerals Corp. v. S.S. Portoria, 5 Cir.1973, 484 F.2d 460, 462; Demsey & Associates, Inc. v. S.S. Sea Star, 2 Cir.1972, 461 F.2d 1009, 1015.
In the instant ease, the district court did not determine whether the bill of lading was signed by the charterer “for the master” with the authority of the shipowner so as to place the shipowner under the terms of COGSA. The plaintiffs contend that this was a fatal error that requires reversal of the district court’s opinion as a matter of law. We cannot agree. It is, as was noted by the trial judge, unnecessary to resolve the complex question whether COGSA was applicable to all of the defendants in the case before us. Because the trial court determined that each of the defendants proved, as required by COGSA’s q clause, that they were free from fault in connection with the loss, the defendants were exonerated from liability whether their responsibility for the loss is properly ascertained under COGSA or under general maritime law.
The district court correctly analyzed the “ping-pong volley-like exchange of burdens” among claimants and defendants in determining liability for loss under COGSA. EAC Timberlane, 580 F.Supp. 113-15. The initial burden is on the shipper who wishes to recover against the carrier for damaged or lost cargo to put forth a prima facie case of cargo loss. This burden is met “by the presentation of a timely claim for damaged or lost cargo and a clean bill of lading which creates a rebut-table presumption that the cargo was delivered in good condition [citations omitted]”. Id. at 113. The burden of persuasion then shifts to the carrier to exonerate itself from liability by proving that the loss falls within one of the statutory exemptions from liability. Id. at 114. Any doubts as to the cause of the loss must be resolved against the carrier. Id. at 114-15.
The district court found that all of the defendants had met their burden of production and persuasion both under the fire exemption and under the q clause exemption of COGSA. The q clause exemption exonerates the carrier from any liability for loss caused by “[a]ny other cause arising without the actual fault or neglect of the agents or the servants of the carrier ...” 46 U.S.C. § 1304(2)(q) (1983). This clause imposes the burden of persuasion on the defendant to show that it was not at fault in contributing to the loss or damage. Id.; see also G. Gilmore & C. Black, The Law of Admiralty § 3-37 at 168 & n. 91 (2d ed. 1975) (citing Waterman S.S. Corp. v. United States Smelting, Refining & Mining Co. [The West Kyska], 5 Cir.1946, 155 F.2d 687, cert, denied, 1946, 329 U.S. 761, 67 S.Ct. 115, 91 L.Ed. 656). Once the defendants in the instant case made this showing, the burden shifted to the cargo interests to “produce evidence to discredit the carrier's theory of causation or to present proof of an alternative and more probable explanation for the loss that would involve the carrier’s causative or contributory negligence”. EAC Timber-lane, 580 F.Supp. at 118. This the plaintiffs failed to do.
The district court found the defendants’ showing of freedom from fault under the q clause and the plaintiffs’ failure to rebut this showing to be determinative of the outcome of the case. The court’s decision did not rest upon an erroneous application of COGSA to all defendants. It rested instead upon a determination that the q clause imposed on the defendants the most demanding burden under maritime law, and that the defendants met this burden. Under the Limitations Act and general maritime law, the plaintiffs would have had the burden of proving that the defendants’ negligence caused the loss; only then would the burden of persuasion shift to the defendants to rebut the plaintiffs’ evidence. The plaintiffs did not prove that the defendants’ negligence caused the loss. Moreover, in accordance with the requirements of the q clause, the defendants affirmatively proved that no fault or negligence on their part caused or contributed to the loss. This showing exonerates the defendants from liability under COGSA, under the Limitations Act, and under general maritime law. See id. at 118.
B. Limitation of Liability Act
A shipowner is entitled to petition the court to limit his liability for cargo lost or damaged without the privity or knowledge of the shipowner to the value of the vessel and her freight then pending. 46 U.S.C. § 183(a) (1983). In a limitation proceeding, the court must first determine whether there exists any liability. The Rambler, 2 Cir.1923, 290 F. 791, 792. The 84-H, 2 Cir.1923, 296 F. 427, cert, denied, 1923, 264. U.S. 596, 44 S.Ct. 454, 68 L.Ed. 867. Liability is determined by the same legal principles that apply in an ordinary action for damages, except that certain statutory exemptions from liability apply. See generally G. Gilmore and C. Black, The Law of Admiralty §§ 10-5 through 10-14 at 834-46 (2d ed. 1975). A claimant seeking recovery for loss of cargo therefore must prove a “definite tort or contract, and the [shipowner’s] connection with it”. Southern Pacific Co. v. United States, 2 Cir.1934, 72 F.2d 212, 215.
In the instant case, the cargo claimants established a prima facie case of cargo loss. The district court found, however, that the plaintiffs did not prove that the defendants had caused or contributed to the explosion and fire which sank the Eva Maria. EAC Timberlane, 580 F.Supp. 118-121. The defendants affirmatively established their freedom from fault; they are free from liability, unless they are to be held strictly liable for the loss.
C. General Maritime Law
The parties agree that principles of general maritime law govern the determination of liability of those defendants who are not regulated by COGSA. The parties disagree, however, as to the correct standard of liability under general maritime law. The plaintiffs contend that the defendants, as carriers of ultrahazardous materials, were strictly liable for the loss of cargo. They argue that § 519 of The Restatement (Second) of Torts (1977), which has been imposed to hold land carriers strictly liable for the miscarriage of hazardous goods, is applicable to carriers of goods by sea as well. This proposition is not supported by the case law and was properly rejected by the district court.
As was noted by the district court, the need for uniformity in admiralty law is well recognized. EAC Timberlane, 580 F.Supp. 112. The imposition of a rule of strict liability for the carriage of ultrahazardous materials, which varies from state to state, would destroy this uniformity and intrude upon the “established statutory scheme concerning carriage of goods by sea” adopted by Congress. Id. Adoption of this rule would, therefore, be inconsistent with established principles of general maritime law. We therefore affirm the district court’s holding that principles of strict liability are not applicable to the case before us; the defendants would be liable in tort for the loss of cargo only upon proof that their negligence caused the loss. Accordingly, the district court’s finding that the defendants affirmatively proved freedom from any fault in connection with the loss and that the plaintiffs failed to rebut this proof is sufficient to exonerate each of the defendants from liability under general maritime law.
III. FINDINGS OF FACT
A district court sitting without a jury is required to set forth with specificity its findings of fact and conclusions of law. Fed.R.Civ.P. 52(a). Rule 52(a) further prescribes that “findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”. Id. This standard of appellate review is applicable to the review of a trial court sitting without a jury in admiralty. McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20. The “clearly erroneous” standard of Rule 52(a) does not, however, apply to conclusions of law. Pullman Standard, Inc. v. Swint, 1982, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66; U.S. v. The Singer Manufacturing Co., 1963, 374 U.S. 174, 83 S.Ct. 1773, 10 L.Ed.2d 823. When a trial court’s conclusion is “derived from the court’s application of an improper standard to the facts, it may be corrected as a matter of law”. Singer, 374 U.S. at 194, 83 S.Ct. at 1784. It is evident from our analysis of the law applicable to the instant case that the district court has applied the proper legal standards to the facts of this case. Our review is, therefore, limited by the clearly erroneous standard of rule 52(a).
A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. United States v. U.S. Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. A court of appeals accords great weight to a district court’s findings of fact and determination of the credibility of witnesses. Inwood Laboratories v. Ives Laboratories, 1982, 456 U.S. 844, 856, 102 S.Ct. 2182, 2189, 72 L.Ed.2d 606; Custom Paper Products Co. v. Atlantic Paper Box Co., 1 Cir.1972, 469 F.2d 178, 179.
In the instant case, the trial judge found that the defendants’ theory of spontaneous heating and explosion of the rice hull material in which the detonator caps were packed to be the most persuasive and likely explanation for the loss of the ship and its cargo. EAC Timberlane, 580 F.Supp. at 119-21. Although the court noted that, like plaintiffs’ theory of causation, the defendants’ theory rested in part on inference and conjecture, the defendants’ theory had a stronger factual basis. Id. at 119. The trial court was in the best position to weigh the evidence before it and to judge the credibility of the witnesses. The court’s conclusion as to the inferences to be drawn from this evidence are reasonably supported by the record, and should not be disturbed on appeal. This is not a case in which the proofs are left in equipóse. The trial court found that the defendants had demonstrated by a preponderance of the evidence that the explosion and loss were caused by spontaneous heating and combustion and not by improper stowage or any other fault of their own. These findings were not clearly erroneous. Accordingly, we affirm.
IV. CONCLUSION
The district court’s finding exonerating the defendants from liability for the loss of cargo aboard the M/V Eva Maria was not predicated upon the erroneous application of the law to the facts before it. The trial judge correctly concluded that the defendants had established their freedom from fault under COGSA’s q clause and that this showing was sufficient to exonerate them from liability under general maritime law as well.
The court’s findings of fact were reasonably drawn from competent evidence and were not clearly erroneous. The record indicates that the trial court correctly assessed the credibility of the witnesses and the testimony before it. The courts finding that the defendants convincingly proved freedom from fault is reasonably drawn from the record.
The judgment of the district court is AFFIRMED.
. The plaintiffs alleged that the defendants had improperly stowed the detonator caps and other cargo in the number two 'tween deck, and that this improper stowage caused the explosion.
. The Fire Statute, 46 U.S.C. § 182 (1982), provides:
"No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.”
. The COGSA fire exemption, 46 U.S.C. § 1304(2)(b) (1982) provides that "[n]either the carrier nor the ship shall be responsible for loss or damage arising or resulting from ... [fjire, unless caused by the actual fault or privity of the carrier ...”.
. Specifically, the plaintiffs allege that only TMM is a COGSA carrier entitled to avail itself of the q clause exemption. Appellants assert that the liability of Pisces and of Laeisz must be determined under principles of general maritime law.
. The defenses and protections of COGSA may be extended to agents and contractors of the COGSA carrier by the inclusion of a "Himalaya Clause” in the bill of lading. See Certain Underwriters at Lloyd's v. Barber Blue Sea Line, 11 Cir.1982, 675 F.2d 266. Such a clause was included in the bill of lading issued to plaintiffs in the instant case. The contract for manning and operating the vessel was, however, between Laeisz and Pisces, the shipowner, and not between Laeisz and TMM, the charterer. The Himalaya Clause, therefore, extends the COGSA protections to Laeisz only if Pisces is a COGSA carrier bound by the Himalaya Clause.
The defendants do not urge on appeal, however, that Laeisz is protected by COGSA. They concede that the operator’s liability is to be determined under general maritime law. Moreover, our analysis of the burdens of proof under COGSA and under general maritime law makes a determination of the applicability of COGSA to Laeisz unnecessary.
. EAC Timberlane, 580 F.Supp. at 118; see also page 718, supra.
. The district court found that each of the defendants was exonerated from liability under the fire exemption because each proved that the loss in question was caused by a fire and explosion which occurred without any fault of their own. EAC Timberlane, 580 F.Supp. at 116. Because the defendants thereby met their burden of proof under COGSA’s q clause, the district court correctly deferred a decision on the precise burden of proof that must be met under the COGSA fire exemption. Other circuits have split on this issue. Compare Complaint of Ta Chi Nav. (Panama) Corp., S.A., 2 Cir.1982, 677 F.2d 225, 229 (carrier meets burden by showing damage caused by fire; burden then shifts to shipper to show carrier’s negligence caused or contributed to fire) with Sunkist Growers Inc., v. Adelaide Shipping Lines, 9 Cir.1979, 603 F.2d 1327-46 (carrier must show that fire caused loss and that carrier exercised due diligence to make vessel seaworthy before burden shifts to shipper). See EAC Timberlane, 580 F.Supp. at 115.
The district court’s holding that the defendants also meet the stricter burden of proof required by the q clause exemption — i.e., freedom from any fault in connection with the loss— makes further analysis of the fire exemption unnecessary. As noted by Gilmore and Black, ”[t]he presence of [the q clause] ought to have some tendency to make it unnecessary to define some of the other exceptions with precision. All we need to know, e.g., as to the defining characteristics of ‘Act of God’ [here, fire] is that freedom from fault is one of them, for once a carrier has established freedom from fault, it does not make any difference whether the cause of damage is an 'Act of God’ [, or fire,] or 'any other cause’ [the q clause exception].’’ G. Gilmore & C. Black, The Law of Admiralty § 3-37 at 168 (2d ed. 1975).
. For the full text of the q clause exemption, see supra p. 717.
. The court stated:
Assuming that the high standard required of the common carriers by this exemption is the one applicable to the facts of this case, the evidence submitted by defendant-petitioners, when compared to that presented by cargo plaintiffs, leads us to conclude that this burden was convincingly met by defendant-petitioners. There is no need to determine if the other less imposing burdens of the Limitations Act, the fire exemption or other "effect” exemptions, apply to the facts of this case.
EAC Timberlane, 580 F.Supp. at 118.
. It is undisputed that the detonator caps that ignited causing the explosion and fire aboard the M/V Eva Maria were hazardous materials.
. Section 519 provides:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
The Restatement of Law (2d) of Torts, § 519 (1977).
. The plaintiffs cite the case of Chavez v. Southern Pacific Transportation Co., 1976, E.D. Ca., 413 F.Supp. 1203, which held a railroad strictly liable for personal injuries and property damage caused by the explosion of a cargo of bombs stored in the railroad yard. The Chavez court found that California had adopted the rule that one engaged in ultraházardous activity shall be held strictly liable for damages resulting from such activity. Id. at 1205. The court also determined that California had not carved out an exception to this rule for common carriers engaged in a public duty. Id. at 1213-14. Such an exception has, however, been recognized in other states. See, e.g., Actiesselskabet Ingrid v. Central Ry. Co., 2 Cir.1914, 216 F. 72, 78, (rejecting the principle that "a common carrier ... under legal obligation to transport dynamite ... is an insurer against any damage which may result in the course of transportation, even though it has been guilty of no negligence which occasioned the explosion which caused the injury”). See also § 521 of the American Law Institute’s Restatement (2d) of Torts (1977) ("rules as to strict liability for abnormally dangerous activities do not apply if the activity is carried on in pursuance of a public duty imposed upon the actor as a public officer or employee or as a common carrier”). Such an exception may exempt the defendants, as common carriers, from liability in the instant case, even if § 519 were applicable in admiralty.
. The plaintiffs cite several cases for the proposition that the doctrine of strict liability has been incorporated into admiralty law. The cases cited, however, recognize only that the doctrine of strict products liability has been uniformly adopted by all of the states and should, therefore, be incorporated into admiralty law. See, e.g., Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 9 Cir.1977, 565 F.2d 1129, 1134 ("strict products liability actions have become sufficiently well-cslab-lished to justify its being incorporated into the law of admiralty”). No such uniformity exists with respect to the doctrine of strict liability for the miscarriage of hazardous materials. See supra note 12.
. The plaintiffs’ contention that the district court’s decision is based on incompetent evidence is without merit. "[Tjhe decision whether to admit or exclude evidence of experiments in a particular case rests largely in the discretion of the trial judge and [her] decision will not be overturned on appeal absent a clear showing of an abuse of discretion ... Ramseyer v. General Motors Corp., 8 Cir.1969, 417 F.2d 859, 864. There is no indication that such an abuse of discretion occurred in the instant case.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_usc1
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18
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee v. Helen Phyllis MILLER, Alfred A. Renzella, Ray Giancola, Alfons Bilello, and Angelo Vaccarro, Defendants-Appellants.
No. 14342.
United States Court of Appeals Sixth Circuit.
April 25, 1961.
Daniel W. Davies, Newport, Ky., for appellants.
Moss Noble, Asst. U. S. Atty., Lexington, Ky., Jean L. Auxier, U. S. Atty., and Moss Noble, Asst. U. S. Atty., Lexington, Ky., on brief, for appellee.
Before MILLER, Chief Judge, and SIMONS and MARTIN, Circuit Judges.
ORDER.
Appellants, Helen Phyllis Miller, and two male defendants, Alfons Bilello and Angelo Vaccarro, were each convicted on two counts for violation of United States Code, Title 18, Sec. 371 and also Title 18, Sec. 659 and were sentenced respectively for two years on each count, to run concurrently.
The Appellant Alfred A. Renzella was convicted of conspiracy and sentenced to 18 months imprisonment and Ray Gian-cola was convicted of conspiracy and sentenced to one year and one day in prison. All the convictions involved the violation of, or the conspiracy to violate, the code sections condemning as a crime buying, receiving, or having in possession goods which were moving as, or a part of, or which constituted an interstate shipment of, freight knowing the goods to have been stolen.
The conspiracy counts charged conspiracy to violate this code section.
After a review of the record setting forth the material evidence in the case, we think there was substantial evidence to support the conviction of the appellants of the offenses of which they were respectively found guilty by the verdict of the jury. We find, moreover, that no reversible error was committed by the trial Judge in his rulings on the admissibility of evidence, in his instructions to the jury as to the applicable law, or in any other ruling upon the trial of the case.
Therefore the judgment and sentence as to each of the five appellants 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:
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